Supporters of the Obama administration’s climate change rule for power plants want a federal court to send the regulation back to the Environmental Protection Agency and let it consider changes.
Environmentalists and renewable energy advocates say sending the Clean Power Plan back to the EPA — what is called a “remand” — is preferable to freezing the case indefinitely while the Trump administration figures out what to do with it.
Kicking it back to the EPA would end a halt that the Supreme Court placed on the rule last year, allowing supporters to file a new lawsuit when or if the Trump administration formally repeals the Clean Power Plan.
“Remand would allow termination of the Supreme Court’s stay pending litigation, and would properly place the responsibility on EPA to follow statutory rulemaking procedures if it wishes to delay implementation or make other changes to the rule,” a coalition of environmental and health groups led by the Environmental Defense Fund told the Court of Appeals for the District of Columbia Circuit on Monday.
The EPA and its allies took the opposite approach, telling the appeals court that the case should be halted indefinitely so that the Supreme Court’s pause stays in effect.
“Abeyance is the proper course of action because it would better preserve the status quo, conserve judicial resources, and allow the new Administration to focus squarely on completing its current review of the Clean Power Plan as expeditiously as possible,” Justice Department attorneys representing the EPA wrote.
“Whereas abeyance would maintain the Supreme Court’s stay, a remand would raise substantial questions regarding the stay’s vitality,” they said.
But greens said freezing the case would allow the Trump administration to indefinitely postpone the regulation without actually repealing it.
“Remand thus would avoid the most egregious flaw in EPA’s request for indefinite abeyance of a rule that is subject to a stay pending expedited judicial review,” they said.
A group of renewable energy associations led by Advanced Energy Economy said putting the issue in the EPA’s hands would subject the Trump administration to the Clean Air Act’s regulatory requirements, instead of indefinitely putting the Clean Power Plan on hold.
“A remand would therefore ensure that the agency actually tackles the issue it has identified — whether to alter or rescind the Clean Power Plan, consistent with its statutory authority to regulate carbon emissions — and that the agency does so in accordance with administrative-law principles.”
Both coalitions supporting the rule said they would prefer that the D.C. Circuit Court rule on the merits of the case, which was argued in September. But the court has thus far said it will not do so, because the Trump administration asked the judges to hold off while the EPA plots its next moves.
The Justice Department had been defending the regulation under former President Barack Obama, whose administration wrote the rule as the main pillar of his climate change agenda. The rule would have ordered a 32 percent cut in the power sector’s carbon dioxide emissions by 2030.
But upon President Trump’s inauguration, the government’s position switched. Under a March executive order, the EPA is reviewing the rule and is nearly certain to repeal it.
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