The Environmental Protection Agency told the D.C. Circuit Thursday (July 26) that it intends to replace the Clean Power Plan by early 2019, and it asked the court to continue delaying the major lawsuit over the plan that has been on hold for more than a year.
As previously reported by Circuit Breaker, several of the court’s judges have become irked by months of EPA inaction while the agency has contemplated how it wants to regulate greenhouse gas emissions from power plants—or whether it wants to regulate them at all. In its latest filing, the agency sought to assuage those concerns, telling the court it is moving “as expeditiously as practicable” to adopt a new regulation on power plants.
According to the agency, that means it will publish its proposed new regulation by “late summer or early fall” so that the rule-making process can be finished by “the first part of 2019.”
The regulation is expected to be more modest than the Clean Power Plan, an aggressive set of rules adopted by the Obama administration in 2015 aimed at reducing emissions from power plants that burn fossil fuels. Opponents challenged the Clean Power Plan at the D.C. Circuit in West Virginia v. EPA, and the plan has never taken effect.
The court, sitting en banc, heard oral argument in West Virginia in September 2016. But after President Trump took office, the new administration—which is no fan of the plan—asked the court to put the case on hold and refrain from issuing a ruling. The reason for the request: The new EPA wanted time to consider whether to repeal or replace the Clean Power Plan.
In April 2017, the court agreed to temporarily pause the litigation—and then, over the next 14 months, it agreed to four additional pauses.
Judges Wilkins, Tatel, and Millett signaled last month that they are getting fed up by all the extensions, and Wilkins wrote that he would not vote to grant any more. The current pause expires on August 25.
In the meantime, the court has ordered the EPA to continue filing monthly status reports on the power plant rule-making.
In the report it filed Thursday, the agency confirmed what already had seemed likely: it intends to replace the Clean Power Plan with a new regulatory scheme, rather than merely repeal the plan and leave nothing in its place, as some conservatives have urged. Repealing it without a substitute arguably would violate the agency’s obligation—under the Supreme Court’s decision in Massachusetts v. EPA—to take regulatory action under the Clean Air Act to curb greenhouse gases.
Here is the EPA’s July 26 status report:
