The Environmental Protection Agency (EPA), as well as 25 attorneys general (AG) and an extensive list of trade associations, electric cooperatives and others, urged a federal appellate court to continue holding legal challenges to the Clean Power Plan (CPP) in abeyance, on the grounds that the agency is "well along in its review of the rule."
In a filing last Friday in the U.S. Court of Appeals for the District of Columbia, EPA said it expects to take a final rulemaking action on the CPP "by the first part of 2019," years ahead of when any emissions reductions would be required under the rule.
"A limited further stay of judicial proceedings until the conclusion of rulemaking will continue to preserve judicial resources and support the integrity of EPA's ongoing rulemaking process," the agency said. "Additionally, this litigation is far from an endpoint, and if reactivated, it would be very unlikely to conclude before EPA's rulemaking."
In a separate filing, the AGs argue that a decision by the court to move forward with legal challenges to the CPP "would effectively amount to an advisory opinion regarding EPA's soon-to-be-completed rulemaking."
The AGs added that an attempt to resolve the legal challenges to the CPP "is improper, and ultimately would serve no purpose for two reasons: First, any decision on the CPP would likely be rendered moot shortly after issuance by its repeal and replacement, and second, due to the Supreme Court's stay, the CPP would almost certainly never go into effect, not even for the shortest of times."
The filings were in response to a joint motion filed Sept. 4 by a coalition of states, cities and environmental groups that want the court to move forward on the legal challenges to the CPP. The coalition argued that keeping the cases on hold is a threat to public health. The lead case is State of West Virginia et al v. EPA et al, No. 15-1363.
Last month, EPA filed a status report with the court and urged it to continue to hold all of the associated legal challenges to the CPP in abeyance. It also proposed replacing the CPP with the Affordable Clean Energy rule (ACE), which would shift much of the responsibility for regulating carbon dioxide emissions from power plants to states. Critics said ACE could potentially increase the use of coal in power generation.
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 emissions 32% below 2005 levels by 2030. But the Trump administration targeted the CPP shortly after taking office.