EPA asks Court to Continue Abeyance of CPP Litigation, Intervenors Push Back

On October 10, 2017, EPA filed a status report in the CPP Litigation, West Virginia v. EPA, informing the D.C. Circuit of its proposed rule to repeal the Clean Power Plan. EPA states in its report that the proposed repeal is based on “a proposed change in the Agency’s interpretation of section 111 of the Clean Air Act, 42 U.S.C. § 7411.”  EPA explains that it is still considering the scope of a potential replacement and that it will “be signing in the near future an Advance Notice of Proposed Rulemaking that will solicit information on systems of emission reduction that are in accord with the legal interpretation that has been proposed by EPA.”  EPA asks the court to extend the abeyance period indefinitely “pending the conclusion of the rulemaking.” (Per the last court order, the current abeyance period was to expire on October 7, 2017.)

Both State and Municipal Intervenors and Public Health and Environmental Organization Intervenors filed briefs requesting that the court rule on the merits of the CPP challenges and reject EPA’s request for an indefinite abeyance.  Both sets of Intervenors explain that, at this time, EPA has proposed only to repeal the rule, not to replace it. The State and Municipal Intervenors allege that a “pure repeal . . . would put the agency in violation of its statutory duty to regulate carbon dioxide from existing power plants under the Clean Air Act, a duty the agency is not contesting it must fulfill.” Public Health and Environmental Intervenors explain that EPA’s stated grounds for repealing the rule are the same as those raised by petitioners in the CPP litigation. And they claim that EPA is seeking an indefinite abeyance “to avoid the timely clarification and implementation of its statutory duties.” Should the court decide to continue to hold the cases in abeyance, both sets of Intervenors request that the abeyance period be limited to no more than 120 days.

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