A federal appeals court on Friday temporarily granted the Trump administration’s request to defer ruling on the validity of the Obama-era Clean Power Plan, and said it would next consider handing the far-reaching climate rules back to the Environmental Protection Agency to be overhauled or even dismantled.
It was a significant tactical advance for EPA Administrator Scott Pruitt, who on President Donald Trump’s orders is working to undo the CPP, which would regulate carbon dioxide emissions from power plants and is critical to meeting U.S. pledges under the Paris climate agreement.
But the court did not give Pruitt all he wanted. He had sought an indefinite hiatus—or “abeyance,” in legal jargon—for as long as it took for him to decide what to do about controlling carbon dioxide emissions, which the Supreme Court has repeatedly found to be EPA’s mandate under the Clean Air Act.
Instead, the appeals court granted an abeyance for just 60 days. It asked the adversaries who have been fighting in court ever since the rules were proposed to submit briefs in just over two weeks on whether the painstakingly devised regulations should be “remanded”—basically sent back to EPA’s drawing board.
If that happens, electric power plants, especially those burning coal, which have long produced a major proportion of U.S. greenhouse gases, would be allowed indefinitely to continue doing so largely unfettered by federal constraints. They would be mitigated only by market forces, state and local laws, and rules governing other pollutions.
David Doniger, a lawyer at the Natural Resources Defense Council, called the ruling disappointing, but not devastating. He noted that if the rule is remanded to Trump’s EPA, the Supreme Court stay could be lifted and the Obama version could remain in force, pending its reconsideration.
Even if the appeals court ultimately decides not to cede the field entirely to the Trump-Pruitt EPA, it’s hard to see at this point how anything but delay and uncertainty lies ahead for the next few years.
Ten judges of the United States Court of Appeals for the District of Columbia Circuit had been ready to rule on the merits of the CPP, which was opposed for years by the fossil fuel industry and by their allies in the states, including by Pruitt when he was Oklahoma’s attorney general.
Environmental advocates, joined by other states, cities and industries, had defended the CPP and wanted the appeals court, which heard oral arguments before the election, to move quickly ahead with a decision and let the matter move swiftly to the Supreme Court, which in early 2016 put a stay on its enforcement until the litigation ran its course.
New York Attorney General Eric T. Schneiderman, who leads a coalition of states and localities in defense of the Clean Power Plan, said in a statement that the “temporary pause in the litigation does not relieve EPA of its legal obligation to limit carbon pollution from its largest source: fossil-fueled power plants.”
“I will continue to fight in court to ensure EPA fulfills its legal responsibility,” he said.
Pruitt has said repeatedly that he believes the Obama EPA overstepped its legal authorities in writing the CPP.
One pro-fossil-fuel group, the Competitive Enterprise Institute, which had joined in the litigation, said it expected that if Pruitt’s EPA reconsiders the rule, it would adopt one of the legal theories that opponents have long offered, but that no court has ever affirmed.
That, CEI energy fellow William Yeatman said, would mean the CPP would either be “nixed” on a legal technicality involving overlap with other regulations, or that any emission controls would be confined “inside the fence” of individual power plants, rather than addressing the electric grid as a systematic whole, as the CPP’s authors tried ambitiously to do.