The U.S. Court of Appeals for the D.C. Circuit has punted again on ruling in a case challenging the Clean Power Plan.
An order from the court Friday leaves the parties, a group of Republican states and the Environmental Protection Agency, along with environmental groups and trade associations, in the legal limbo they’ve inhabited since the court heard oral arguments en banc last year. The order holds the case in abeyance for 60 days, and asks the parties to file briefs by May 15 on whether it should halt the case indefinitely or remand to the EPA.
“We were already waiting for the court to decide,” said Howard Fox, counsel with environmental group Earthjustice, which intervened to defend the plan. “What this means is we have to wait a few more weeks.”
President Barack Obama issued the plan in 2015, but the change in power at the White House has shaken up the state of play in the case challenging it. West Virginia and several other Republican states immediately filed a lawsuit, and now one of the EPA’s biggest critics, former Oklahoma Attorney General Scott Pruitt, is running the agency.
In a statement, EPA spokesman JP Freire said Pruitt “has already announced that EPA is reviewing the Obama Administration’s Clean Power Plan,” and that the agency is pleased “this order gives EPA the opportunity to proceed with that process.”
New York Attorney General Eric Schneiderman, who leads a coalition of states and localities defending the plan, said the court’s pause does not “relieve EPA of its legal obligation” to limit carbon pollution.
“And as I’ve said, if President Trump wants to repeal the Clean Power Plan, he has to replace it – period,” Schneiderman said in a statement. “I will continue to fight in court to ensure EPA fulfills its legal responsibility to New Yorkers’ public health and environment.”
Meanwhile, West Virginia Attorney General Patrick Morrisey praised the ruling.
“Today’s decision by the court is a positive step toward protecting West Virginia coal miners and those who depend upon their success,” Morrisey said in a statement. “The court recognized the landscape has changed and that a decision on the merits is not appropriate at this time.”
Fox’s group and others fighting to defend the plan vowed to continue legal action to protect the environment, though it is not clear what that legal action may be.
Last month, the Trump administration asked the court to suspend the case because of the president’s March 28 executive order directing the EPA to review the plan. The plan imposes national limits on carbon pollution from power plants.
The U.S. Supreme Court halted implementation of the plan in February 2016, pending litigation. If the U.S. Court of Appeals in D.C. decides to hold the case in abeyance indefinitely, it would stay on the court’s docket, but the plan itself might never go into effect.
“[The Supreme Court’s stay] was intended as a limited-duration stay,” said Joanne Spalding, chief climate counsel at the Sierra Club. “If the D.C. Circuit then were to hold the case in abeyance, it would prolong a stay that was intended to be a limited-duration stay.”
Spalding said her group’s preference is for the court to decide the case. If it doesn’t, it should remand the case to the agency, ending the litigation and lifting the stay.
The EPA would review the plan regardless of the court’s decision. That means a lengthy notice and comment period that allows for public input.
Any final decision from the EPA could elicit further litigation, Spalding said.
“If it’s ‘do nothing to regulate carbon pollution from these massive polluting power plants,’ then we would challenge that,” Spalding said. “If they decide to do something weak and ineffective, we would challenge that. If they decide to rescind it; these are all things we would be able to challenge once they reach a final decision.”