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D.C. Appeals Court Pauses Clean Air Litigation, Per Trump Request

June 23, 2017

In response to a request by the Trump administration, a 10-judge panel of the U.S. Court of Appeals for the District of Columbia has ordered a pause in litigation over air-quality rules proposed by the Obama EPA.

In response to a request by the Trump administration, a 10-judge panel of the U.S. Court of Appeals for the District of Columbia has ordered a pause in litigation over air-quality rules proposed by the Obama-era Environmental Protection Agency (EPA).

Under the April 28 ruling, litigation over the Clean Power Plan (CPP)—the Obama administration’s effort to limit emissions from coal-fired power plants—will be held in abeyance for at least 60 days. Twenty-seven states, led by coal-producing West Virginia, had challenged the legality of CPP, with several industry groups joining their lawsuit.

Executive Order Sparks Pause

President Donald Trump issued an executive order on March 28 directing Environmental Protection Agency Administrator Scott Pruitt to review the CPP and rescind or revise it, if necessary, to promote the wise development of natural resources, unencumber energy production, and increase jobs. With that in mind, the court agreed to a timeout in oral arguments during the review. In 2016, the Supreme Court ordered a nationwide stay on implementation of the CPP, pending the outcome of the legal challenges.

CPP was the centerpiece of the Obama administration’s policy of moving the United States away from the use of fossil fuels, beginning with coal. Compliance with the plan and other regulations would force utilities to shutter coal-fired power plants. Under the CPP, utilities would be required to reduce carbon-dioxide emissions by 32 percent below 2005 levels by 2030.

During the 2016 presidential election, then-candidate Trump pledged repeatedly to do away with CPP, and Trump’s executive order titled “Promoting Energy Independence and Economic Growth” is the initial step to that end.

Mercury and Ozone Rules

In a separate action, a three-judge panel of the U.S. Court of Appeals for the District of Columbia granted the Trump administration’s request for delay in oral arguments in two lawsuits challenging the Obama administration’s 2012 Mercury and Air Toxics Standards (MATS) rule.

On June 29, 2015, a divided U.S. Supreme Court struck down EPA’s rule to limit mercury emissions from coal- and oil-fired power plants, saying the agency “unreasonably” failed to consider the cost of the regulations. Months later, after producing a supplementary finding the benefits of the rule outweighed their costs, EPA reissued the rule.

In one suit filed in response to EPA’s latest issuance, Ohio-based Murray Energy, energy industry groups, and several state attorneys general are seeking to overturn EPA’s 2016 “supplemental finding,” arguing the agency failed to give due consideration to the compliance costs in deciding to move ahead with the regulation.

Oral arguments on the two suits were scheduled for May 18, but EPA requested a delay while the Trump administration reviews EPA’s cost estimates.

The same appellate court handed the White House another victory in April, when it granted EPA’s request to delay oral arguments on the agency’s 2015 ozone mandate. That Obama-era rule tightens the national standard for ground-level ozone from 75 parts per billion (ppb) to 70 ppb. EPA estimates the rule would throw dozens of metropolitan areas out of compliance with the Clean Air Act, forcing them to take measures to lower their ozone levels, with no benefit to public health.

The court directed the administration to file reports on its review of the ozone rule every 90 days.

Only the Beginning?

Christopher Horner, a senior fellow at the Competitive Enterprise Institute, and Craig Rucker, executive director of the Committee for a Constructive Tomorrow, say Trump’s executive order and his administration’s victories in court over Obama-era regulations should only be the beginning of a larger rollback of climate-related energy restrictions.

“The court’s decisions do not mark the end,” said Horner. “If the Trump administration does the right thing and withdraws from the Paris climate agreement and has EPA scrap its carbon-dioxide endangerment finding, these rulings will be looked back upon as the beginning of the end. If not, this will be a mere pause.”

“President Trump has kept his promise to roll back anti-fossil-fuel regulations, and his administration is going after them root and branch,” Rucker said. “EPA has also taken down its propaganda-laden climate change website and shown Obama EPA Science Advisory Board appointees to the door.

“This is real change,” said Rucker. “Getting the United States out of the Paris climate change agreement is the logical next step.”

Bonner R. Cohen, Ph.D. (bcohen@nationalcenter.org) is a senior fellow at the National Center for Public Policy Research.

Author
Bonner R. Cohen is a senior fellow with the National Center for Public Policy Research, a position he has held since 2002.
bcohen@nationalcenter.org

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