Power companies press DC Circuit for CPP decision as EPA argues for indefinite stay

Dive Brief:

  • The U.S. Environmental Protection Agency this week asked the U.S. Court of Appeals for the District of Columbia Circuit to indefinitely delay litigation on the Clean Power Plan as it considers changes to the carbon regulations put in place by President Obama. 
  • A group of conservative states, electric co-ops and other energy groups joined the EPA, arguing that holding the case in indefinite abeyance would allow the court to revisit the issue if the agency does not make major changes to the regulations. 
  • A separate group of power companies and clean energy trade associations argued that the court should issue a ruling in the case or remand it back to the agency. Not doing so would amount to "short-circuiting" requirements of the the Administrative Procedure Act and the Clean Air Act, they wrote.

Dive Insight:

Briefs in D.C. Circuit's Clean Power Plan case were due this week after the court announced in April that it would grant a request from the White House to delay issuing a decision.

The EPA and states that challenged the regulations on existing power plants want the case to be delayed indefinitely, arguing it would "better preserve the status quo, conserve judicial resources, and allow the new Administration to focus squarely on completing its current review." 

Implementation of the rule is on hold, frozen by a judicial stay from the Supreme Court in February 2016. Because of that, supporters of the rule say an indefinite abeyance would amount to suspending the rule without going through administrative procedures.

While three clean energy trade groups would prefer to see the case decided on the merits, they said remanding it back to the EPA would mean the agency would still have to deal with the issue of carbon emissions.

"Once the stay is lifted, the Clean Power Plan would remain in effect — and the EPA would therefore have to comply with the Clean Air Act’s rulemaking process if it eventually decides to amend or rescind the rule," Advanced Energy Economy, the Solar Energy Industries Association and American Wind Energy Association wrote in their brief.  

"A remand would therefore ensure that the agency actually tackles the issue it has identified ... and that the agency does so in accordance with administrative-law principles."

A group of power companies — including Calpine, National Grid Generation, New York Power Authority, Pacific Gas and Electric Co., Southern California Edison Co., and municipal utilities for Sacramento, Los Angeles, Austin and Seattle — also called on the court to remand the rule to the EPA.

"Allowing the stay to remain in effect indefinitely, while EPA avoids a decision on the merits and conducts its review of the rule and any subsequent rulemaking, will effectively nullify the rule without requiring EPA to articulate a rationale for doing so," they wrote.

On April 28, the D.C. Circuit granted the White House's request to pause litigation on the Clean Power Plan, holding the case in abeyance for 60 days. The Administration had told the court it "should be afforded the opportunity to fully review the Clean Power Plan and respond to the president's direction."

If the administration moves to repeal the CPP without a replacement, it could set up a legal showdown over the scope of the Clean Air Act or the EPA's 2009 endangerment finding on greenhouse gases.

More litigation is almost certain: InsideClimate News reports that a group of states and energy companies opposed to the rule issued a warning, telling the Circuit that without a continued stay there will be "additional litigation in the near term before the Supreme Court and likely this court, presumably not the intended result."

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