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Court Grants Administration Request to Hold CPP Challenges in Abeyance

A Trump administration request to hold in abeyance a flurry of lawsuits challenging the Environmental Protection Agency's (EPA) Clean Power Plan (CPP) was granted Friday by the U.S. Court of Appeals for the District of Columbia Circuit.

A majority of the 11-judge court -- with Chief Judge Merrick Garland not participating -- concluded that the consolidated cases be held in abeyance for 60 days, giving EPA time to work on its repeal of the regulations. The court also ordered that parties file supplemental briefs addressing whether the cases should be remanded back to EPA rather than held in abeyance.

The cases were filed by 28 states and several industry groups that argued the Obama-era CPP was unduly burdensome to the energy industry and too costly for consumers. The Trump administration had asked the court to put the lawsuits on hold to give EPA time to dismantle the CPP.

The lawsuits were triggered by an executive order (EO) signed by President Trump last month that called for sweeping changes in the energy sector. The EO, which signaled a marked shift in U.S. policy from combating climate change to achieving energy independence, called for an immediate reevaluation of the CPP and lifting a ban on federal leasing for coal production, as well as returning regulatory powers to state and local governments. It would also review the "social cost of carbon" methodology for crafting regulation.

At the time, Trump derided the CPP, saying "perhaps no single regulation threatens our miners, energy workers and companies more than this crushing attack on American industry."

On Friday, EPA spokesman J.P. Freire said the agency is reviewing the CPP within Trump's EO. "We are pleased that this order gives EPA the opportunity to proceed with that process," Freire told NGI.

The court's two-page order, which included no decision on the legality of the CPP, was "obviously important but not terribly surprising," said Jeff Holmstead, a former EPA air administrator now working for the policy resolution group Bracewell LLP.

"I don't think the D.C. Circuit has ever gone ahead and decided on the legality of a rule when a new administration says it plans to rescind or revise it. The only question now is whether the case will be held in abeyance or remanded back to EPA.

“If the court had upheld the rule, it wouldn't have prevented the new administration from revoking it, but it might have made this effort harder. At the very least, today's ruling means that it will not take as long for the administration to undo the Clean Power Plan."

Earlier this year, the Trump administration unveiled a proposed $1.15 trillion budget that included a call for the EPA to terminate climate change programs, including the CPP.

The Obama administration unveiled the final version of the CPP in August 2015. The plan, which embraces renewables, solar and wind power, but not so much natural gas, calls for states to reduce 2005 emissions levels by 32% by 2030.

The CPP would have required that states to develop and implement plans to ensure power plants in their state -- either as single plants or as a collective group -- achieve goals for reducing carbon dioxide (CO2) emissions between 2022 and 2029, and final CO2 emission performance rates by 2030. The CPP gave states the option of choosing between either an emissions standards plan or a state measures plan to reduce emissions. States also had the option of trading emissions rate credits with other states.

Garland, whose nomination to the Supreme Court by President Obama was passed over by the Senate last year, did not participate in the court's vote Friday.

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