Group of States, Cities, and Organizations Tell Court Enough is Enough in CPP Abeyance

UPDATED 9.20.2018  EPA’s September 14 response is available here.  Petitioners and Petitioner-Intervenors also responded.

A group of intervenors in the litigation over the CPP (Intervenor-Respondents) filed to oppose EPA’s request for further abeyance.  In its August 24 status report, EPA said that it has “now completed developing proposed replacement section 111(d) emission guidelines premised on an alternative regulatory approach to that set forth in the Clean Power Plan” (that is, the new Affordable Clean Energy (ACE) rule).  The agency also claimed that it “is committed to completing final rulemaking action as expeditiously as practicable.”  EPA requested a continued abeyance pending the conclusion of this rulemaking.  A group of state and industry petitioners and intervenors filed in support of EPA’s request, as did petitioner North Dakota.

In their September 4 response, Intervenor-Respondents, including New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Mexico, Oregon, Rhode Island, Vermont, Virginia, Washington, and Washington, D.C., as well as several cities and non-governmental organizations, urged the D.C. Circuit to “decide the live controversy before it.”  They argue that “EPA, with Petitioners’ support, has taken undue advantage of the abeyance, prolonging the delay through a series of notices that do not come close to fulfilling EPA’s statutory obligations.”  They catalogue the different (non-finalized) proposals that EPA has promulgated since the change in administration related to the CPP, including the proposed repeal and the advanced notice of proposed rulemaking for a potential replacement.

Intervenor-Respondents acknowledge EPA’s August 31 ACE proposal, but find it flawed.  They specifically assert that the proposal “entirely fails to address emissions from natural gas-fired combined cycle power plants” and “does not require any particular degree of emission reduction by any particular deadline.”  Citing EPA’s Regulatory Impact Analysis for the proposal, they state that the rule “will result in increased hospital admissions due to respiratory illness, increased asthma-related emergency room visits, and exacerbation of asthma, and may result in over 1,000 more premature deaths per year by 2030 relative to the Clean Power Plan.”

Intervenor-Respondents accuse EPA of taking advantage of the abeyances to avoid fulfilling its statutory duty.  They argue that the legal premise of EPA’s new proposal—that the Clean Air Act requires the regulation of greenhouse gas pollution from power plants, but prohibits the best system of emission reduction of the CPP—are the legal questions that have been briefed and argued in this case.  Therefore, they urge the Court to decide the case now.

As a reminder, several D.C. Circuit judges expressed a reluctance to continue in the same holding pattern when the Court extended the abeyance earlier this summer.

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