The Trump administration is asking a federal court to delay moving forward on three Obama-era environmental regulations while the administration decides if and how it wants to repeal or rework those rules.
On Friday, the administration asked the U.S. Court of Appeals for the District of Columbia Circuit to delay arguments on both the Obama-administration’s 2015 ozone rule and 2016 methane regulations for new oil and gas operations.
The Trump administration already promised to review the 2016 methane rule, which would have required new oil and gas operations to check for and repair methane leaks, in its executive order released in late March. But on Friday, the administration also signaled that it might be reviewing the Obama administration’s 2015 rule that lowered allowable concentration of ozone from 75 parts per billion to 70 parts per billion, and asked the D.C. Circuit to delay oral arguments in a lawsuit challenging the rule, which were scheduled for later this month.
Both the methane rule and the ozone rule garnered criticism from Republican lawmakers as well as the fossil fuel industry, which argued that the rules would require fossil fuel producers to cut down on production in order to meet stricter air quality and production standards. The EPA, under Administrator Scott Pruitt, already announced that it would no longer ask existing oil and gas operations to report methane emissions data to the agency after industry stakeholders petitioned Pruitt to reverse the Obama-era data gathering.
The Trump administration has also asked the D.C. Circuit Court not to issue a ruling on a pending case regarding the Clean Power Plan, the Obama-administration’s policy regulating carbon emissions from power plants. Twenty-six states had filed a lawsuit against the plan, which has been under a temporary stay from the Supreme Court while the lawsuit made its way through lower appeals courts. The D.C. Circuit Court had already heard arguments from both sides and had been prepared to issue a ruling any day — but given the fact that the Trump administration has directed the EPA to review and rewrite the rule, the Justice Department is now arguing that the EPA should have the opportunity to review the rule before a court ruling is issued.
Environmental groups and states that had argued in support of the Clean Power Plan have already challenged the Trump administration’s request for delay in that case, arguing that the case is all but decided.
“This case is all but at the finish line, and there are questions that have been put in this case that would be clearly relevant no matter how the agency might try to recast the rule,” David Doniger, senior attorney for Natural Resources Defense Council’s climate and clean air program, said on a press call before the Justice Department filed its request. “It would be our intention to oppose any effort to shortcut the process and urge the court to continue on to reach a decision.”
In a slew of filings submitted last week in support of the Clean Power Plan — and in opposition to the Trump administration’s request for delay — environmental and state lawyers argued that the Clean Power Plan lawsuit involves legal issues that are likely to be important in rewriting the rule. One potential issue a ruling from the D.C. Circuit could clarify is whether or not the EPA has authority to regulate emissions from power plants outside of the power plant design or operation — known as the “outside of the fence” argument.
States and environmental groups arguing on behalf of the Clean Power Plan also maintain that the Supreme Court’s stay of the rule, issued last year, was intended to last only until the circuit court had a chance to rule in the case. By delaying judicial review, the intervenors argue, the Justice Department is asking the D.C. Circuit Court to contradict the temporary intent of the stay granted by the Supreme Court.
Legal experts characterized that argument as a bit of a stretch, but told E&E News that it could be persuasive in court.
“There’s a reasonable argument that the court should not grant an abeyance unless and until it has a clearer indication of what the EPA is seeking to do with regard to the Clean Power Plan,” Case Western Reserve University law professor Jonathan Adler told E&E News.
Paul Bailey, president and CEO of American Coalition for Clean Coal Electricity — a group involved in the case against the Clean Power Plan — told the Washington Examiner that they expect the D.C. Circuit Court to make a decision on whether it will delay ruling on the case sometime this week.