The litigious factions wrangling over the Clean Power Plan jockeyed for position in legal briefs filed at a federal appeals court on Monday, trying to gain tactical advantage as the Trump administration seeks to undo the Obama-era rule on climate change pollution from electric utilities.
Administration lawyers said they wanted to "better preserve the status quo" as they asked the court to defer any action at all. "The status quo is that the Rule has been stayed by the Supreme Court," the administration's brief noted. That would keep the Clean Power Plan moribund while the administration prunes it or leaves it to die.
On the other side, lawyers for green groups asked the judges not to let the case go cold "without any court having issued a decision on its legal merits and without following the administrative steps necessary to amend, suspend or withdraw a regulation." A group of sympathetic power companies chimed in that deferring a decision "would amount to indefinite suspension." And clean-energy trade associations said, "this court's decision impacts the actions and expenditures of all members of the advanced and renewable energy sector—a $200 billion market."
Meanwhile, coal-friendly states and their fossil fuel allies said if Donald Trump's EPA doesn't get its way, the result would be "additional litigation in the near term before the Supreme Court and likely this court, presumably not the intended result." It was a blunt warning that after years of litigation, the rule's foes have no intention of letting the CPP pull off a miraculous resurrection.
Welcome back to the United States Court of Appeals for the District of Columbia Circuit and a case whose bitter end seems always just beyond the horizon.
The court had invited briefs from the parties on a narrow question: If it's not going to reach a judgment now on the Clean Power Plan, how should it dispose of the case?
The two alternatives, in legal jargon, are "abeyance" and "remand."
In abeyance, the appeals court would call time out. Enforcement of the CPP would remain frozen by the Supreme Court's stay. The EPA could take its time in considering any next steps.
If the EPA wins an abeyance, and the CPP is kept in limbo, there would be no constraint on coal-fired utilities' carbon dioxide emissions for the foreseeable future, other than competition in the marketplace from cleaner fuels like natural gas and renewables, or regulations imposed by the states.
In remand, the court would hand the matter back to the EPA. But with the trial over, the stay could be dissolved. Obama's rules would remain, complicating EPA's effort to revise them, but hardly ensuring their long-term survival.
The Clean Power Plan was the centerpiece of President Barack Obama's climate agenda. It put the nation on a path toward achieving the promises the United States made in negotiating the Paris climate agreement.
In court filings, the rule's defenders told the court that, while they would prefer a ruling on the merits, the next best thing would be for the court to remand the regulations to the EPA.
"Fundamentally, however, we argue that the court's responsibility is to decide the case," David Doniger wrote on the blog of the Natural Resources Defense Council, where he is the director of the Climate and Clean Air Program.
"Our brief recalls that the fight to curb power plants' dangerous carbon pollution under the Clean Air Act has already gone on for nearly 20 years," Doniger wrote. "Every year, carbon dioxide levels just keep rising, and the dangerous impacts of climate change keep getting more severe."