D.C. Circuit Will Not Rule on Clean Power Plan—For Now

The D.C. Circuit Court of Appeals has granted the Trump Administration’s request to hold the Clean Power Plan (CPP) case in abeyance—for 60 days. The court also asked the parties to brief whether the case should be sent back to the Environmental Protection Agency (EPA), which would, practically speaking, invalidate the rule. At 30-day intervals EPA must file status reports with the court.

The court didn’t explain its reasons but likely it is concerned President Trump’s March 28 executive order (EO) Promoting Energy Independence and Economic Growth means the demise of the version of the CPP the court has been considering. The EO calls for the “suspending, revising, or rescinding,” of the CPP, if appropriate after EPA review.

It will take a long time for a new version of the CPP to work its way through the Administrative Procedure Act lengthy notice and comment process. Perhaps the D.C. Circuit wants to see what kind of progress the Trump administration can make in implementing this EO in the next 60 days.

Adopted in 2015, per the CPP, by 2030 carbon pollution from the power sector is supposed to be 32 percent below 2005 levels. State-by-state targets are to be accomplished by increased production of renewable energy.

A number of states sued the Obama administration claiming the CPP regulations exceeded EPA’s authority under the Clean Air Act. In February 2016 the Supreme Court preventing the CPP from going into effect until the D.C. Circuit Court of Appeals (and the Supreme Court if it chooses to) rules on the regulations.

In September 2016 the entire D.C. Circuit heard oral argument in West Virginia v. EPA—no opinion has been forthcoming to date.

The Trump administration asked the D.C. Circuit to hold the case in abeyance while EPA engages in rulemaking. The motion argued abeyance “avoid[s] unnecessary adjudication, support[s] the integrity of the administrative process, and ensure[s] due respect for the prerogative of the executive branch to reconsider the policy decisions of a prior Administration.”

At some point the Supreme Court is likely to review some version of the Clean Power Plan.