United States: The Stage Is Set For New Action On The Clean Power Plan

The unprecedented legal battles over the Clean Power Plan have been on ice for quite some time. However, recent events suggest the rule may start making headline news once again very soon.

Originally enacted in October 2015, the rule was challenged immediately, stayed by the Supreme Court in February 2016, and argued in expedited fashion to the entire D.C. Circuit for seven hours on September 27, 2016. With over a hundred total litigants, including all but five states—26 against the rule, and 19 supporting it—all eyes were on the one of the most unusual and significant environmental cases of all time.

Then the world changed. Shortly after that grueling oral argument, Donald Trump was elected to become the next President of the United States and, in March 2017, President Trump ordered EPA to "if appropriate [and] as soon as practicable ... publish for notice and comment proposed rules suspending, revising, or rescinding" the rule. The Department of Justice notified the D.C. Circuit of the order in March, and, in April, the court placed the litigation in abeyance, which is commonplace with changes in Administrations.

Status of EPA's Reconsideration and Possible Repeal & Replacement

During the court-ordered hiatus, EPA has proceeded through its review of the rule and in October 2017 proposed to repeal the rule based on a different legal interpretation of its statutory authority (largely a return to the interpretation it held for decades before the Clean Power Plan). Then in December 2017, EPA published an advanced notice of proposed rulemaking to take comment on the type of rule that should replace it.

After considering the many comments that came in, EPA has now developed a proposed replacement rule, and that rule is currently under interagency review at the Office of Management and Budget, where all rules must go before signature and publication. EPA expects to issue the proposed replacement for public review and comment in the next several weeks and plans to issue a final rule early next year.

Upcoming DC Circuit & Possible Supreme Court Action

Some of the judges on the D.C. Circuit, however, appear to be growing impatient. Given the Supreme Court stay of the rule pending resolution of the legal challenges and strong objections to abeyance from states and environmental groups supporting the rule, the D.C. Circuit has only placed the case in abeyance for 60 days at a time and has required status reports from the Agency every 30 days.

The latest order extending the abeyance an additional 60-days (until late August) drew two concurring opinions supported by three D.C. Circuit judges suggesting this could be the last one. One concurrence essentially recommended that state and environmental intervenors who oppose continued abeyance to take their concerns about the stay back to the Supreme Court. The other suggested that perhaps there is no longer a case or controversy and the D.C. Circuit should consider dismissal of the case without prejudice and remand the rule the Agency.

In response, the parties supporting the rule filed a letter with the Chief Justice of the Supreme Court on July 27th asserting that "the litigation has come to a protracted standstill" and asking the Court to review whether its stay remains appropriate in light of changed circumstances. If the Court agrees a review of the stay is warranted, it would likely seek input from EPA, the petitioners, or both—and that is what the letter itself recommends.

Either way, with the current abeyance period set to expire in late August, the D.C. Circuit will have to decide again whether to continue abeyance of the litigation pending EPA's rulemaking action to repeal and replace the Clean Power Plan. This time, however, it may well have the benefit of a proposed replacement rule from EPA. Regardless of the path, expect the Clean Power Plan to be back in the headlines soon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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