The Trump Administration won a conditional victory last week in its plan to roll back President Barack Obama’s Clean Power Plan, after the DC Circuit Court of Appeals agreed to postpone its decision on a pending lawsuit against the plan.
The decision “sends the rule back to Trump’s EPA to review and most likely quash the regulation,” Politico reports. “The court’s pause in the case means EPA will not have to contend with a potentially awkward opinion that could have upheld the regulation as Trump’s EPA worked to dismantle it. Many legal observers believed after last year’s arguments that the rule would have survived most, if not all, of the legal challenges.”
But InsideClimate News reports that the “significant tactical advance” doesn’t give the administration the clearcut victory it wanted.
Pruitt “had sought an indefinite hiatus—or ‘abeyance,’ in legal jargon—for as long as it took for him to decide what to do about controlling carbon dioxide emissions, which the Supreme Court has repeatedly found to be EPA’s mandate under the Clean Air Act,” writes ICN’s John H. Cushman Jr.
“Instead, the appeals court granted an abeyance for just 60 days. It asked the adversaries who have been fighting in court ever since the rules were proposed to submit briefs in just over two weeks on whether the painstakingly-devised regulations should be ‘remanded’—basically sent back to EPA’s drawing board.”
If that’s the way the eventual decision goes, emissions from U.S. power plants will be “largely unfettered by federal constraints”, ICN notes, “mitigated only by market forces, state and local laws, and rules governing other pollutions.” But Natural Resources Defense Council attorney David Doniger called the ruling disappointing but not devastating. If the court remands the rule, the existing Clean Power Plan will remain in force until it’s replaced. If not, both sides will face years of uncertainty (while clean energy markets continue to surge forward—Ed.).
New York Attorney General Eric T. Schneiderman noted that the “temporary pause in the litigation does not relieve EPA of its legal obligation to limit carbon pollution from its largest source: fossil-fueled power plants,” adding that “I will continue to fight in court to ensure EPA fulfills its legal responsibility.”
Playing out one possible outcome of last week’s ruling, Politico reports that “Pruitt’s EPA now has the time it needs to review the rule and most likely propose repealing it.” But the actual repeal “could take a year or more, since the agency must go through the same sort of public notice-and-comment rulemaking it followed in creating the rule that was issued under former EPA Administrator Gina McCarthy in 2015. And EPA’s final decision could be challenged in court, as well, meaning the agency would have to defend its legal rationale” for repealing a rule it previously championed.
Some observers believe that will be a tough argument for the EPA to make, since the climate science behind the Clean Power Plan becomes more robust, not less so, with each passing day.
“Some experts say it is possible that if EPA’s expected repeal is rejected by the courts in the future, the issue could simply push the court to rule on the legal merit of the challenges to the Clean Power Plan,” writes Politico’s Alex Guillén. “Repealing the Clean Power Plan and litigating that action could last through much of Trump’s term, keeping the issue in the political spotlight during the 2018 and 2020 elections.”
