Notice & Comment

If Trump Wants To Abandon the Clean Power Plan, the Courts Shouldn’t Give Him Cover, by Brianne Gorod

brianne-gorod-cacA little over two weeks ago, tens of thousands of people marched in cities around the country in support of efforts to combat climate change. Just a day before they marched, the United States Court of Appeals for the D.C. Circuit issued an order that undermines those efforts, granting a motion filed by the Trump Administration EPA to hold in abeyance cases considering the legality of the Obama Administration’s Clean Power Plan (CPP).

In October 2015, the Obama Administration EPA promulgated the CPP, which establishes emission guidelines for States to follow in developing plans to limit carbon dioxide emissions from existing power plants. As EPA explained at the time, the CPP “guidelines, when fully implemented, will achieve significant reductions in [carbon dioxide] emissions by 2030.” The benefits of those reductions would be significant, producing “climate and health benefits worth an estimated $55 billion to $93 billion in 2030, including avoiding 2,700 to 6,600 premature deaths and 140,000 to 150,000 asthma attacks in children.”

The CPP was challenged in court, but before any court had issued a decision on its legality, the Supreme Court voted 5-4 to stay it. (The vote to stay the CPP took place just days before Justice Antonin Scalia passed away in February 2016.) The Supreme Court’s order to stay the EPA’s rule before the D.C. Circuit had an opportunity to review it was, as Adam Liptak put it, “unprecedented.”

In late March of this year, while the cases challenging the CPP remained pending before the D.C. Circuit (the court heard oral argument en banc last fall), President Trump issued an Executive Order that, among other things, instructed the EPA to review the CPP and “if appropriate . . . publish for notice and comment proposed rules suspending, revising, or rescinding” it. As Eli Savit wrote on the Take Care blog, the “immediate consequences the Plan’s rescission will have on vulnerable Americans” could be “devastating.” That same day, the EPA filed a motion with the D.C. Circuit, asking that the cases challenging the CPP be held in abeyance in light of the agency’s plan to reexamine the rule at issue.

As an aside, it’s worth noting that this wasn’t the first—or last—time the D.C. Circuit has been asked to suspend consideration of a case in light of possible changes of position by the new Administration. Late last year, the court granted a motion to hold in abeyance the case in which the House of Representatives filed suit against the Obama Administration for making certain payments required by the ACA. And late last month, MetLife asked the court to hold a case involving the government’s designation of the company as essentially “too big to fail,” given a Trump memorandum to the Secretary of the Treasury directing that he review the process by which non-bank institutions like MetLife receive that designation.

Late last week, the D.C. Circuit granted EPA’s motion in the CPP cases, over the objection of a number of States and environmental organizations that had intervened in the cases in support of the CPP. The court ordered that the cases be held in abeyance for 60 days, and directed the EPA to file status reports every 30 days. It also directed the parties to file supplemental briefs addressing whether the cases should be sent back to the agency, rather than held in abeyance.

The D.C. Circuit gave no explanation for its order, and indeed it’s difficult to know what explanation it could have given. As the States pointed out in their opposition, the EPA’s “vague intent to review the [CPP] and potentially undertake further rulemaking” provides no basis for delaying a ruling from the court. After all, the rule’s challengers have invoked the court’s jurisdiction, and they’re not withdrawing their case. Indeed, delay seems particularly inappropriate in these cases given that, as a result of these lawsuits, implementation of the CPP is now stayed. If the D.C. Circuit continues to hold these cases in abeyance, the CPP could remain stayed indefinitely, even though it remains on the books and even though no court has ever held that it’s unlawful.

Another oddity of the EPA’s request was the suggestion that it would “avoid[] unnecessary adjudication.” After all, the many issues raised by the CPP’s challengers have already been fully briefed, and the full court heard oral argument more than seven months ago. On top of that, the court’s resolution of many of the legal questions raised by the CPP’s challengers should provide useful guidance to the EPA as it considers whether and how to revise the CPP and, more generally, how to make policy in this area.

In the absence of a ruling by the D.C. Circuit, the Trump Administration EPA will presumably decide what to do with the CPP based on its preexisting views about the rule’s legality, and there’s no question what those views are – Trump’s pick to head the EPA, Scott Pruitt, was one of the state officials suing to block the rule when he was Attorney General of Oklahoma. But if Pruitt and his EPA want to kill the CPP, they should have to actually engage in notice-and-comment rulemaking; they should have to explain why that change is, in their view, both good policy and legal. As it stands now, they can do nothing, and the rule will remain stayed.

If the D.C. Circuit decides not to decide these cases, the stay of the CPP, which was designed to maintain the status quo while judicial review was occurring, shouldn’t remain in place indefinitely. As the States pointed out in their opposition to the abeyance motion, “[t]he [CPP] is an important step towards fulfilling EPA’s obligation to address the ongoing harm caused by global climate change.” If President Trump and Scott Pruitt want to take a giant step backward in the effort to address climate change, the courts shouldn’t give them cover for their ill-advised policy decisions.


Brianne Gorod is Chief Counsel at the Constitutional Accountability Center and previously served as a law clerk to Justice Stephen Breyer and as an Attorney-Adviser in the Office of Legal Counsel at the U.S. Department of Justice. She is one of the authors of a “friend of the court” brief the Constitutional Accountability Center filed on behalf of current and former members of Congress in the Clean Power Plan cases. Follow her on Twitter here.

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