Litigation Update: Clean Power Plan, New Source Performance Standards, and Effluent Limitations

Clean Power Plan.  As we previously reported following the President’s March 28, 2017 Energy Executive Order, the Department of Justice has requested that the D.C. Circuit hold the CPP in abeyance while EPA conducts a review of the rule.  The D.C. Circuit has not yet ruled on that motion, but other action on the rule has been an almost daily occurrence:

  • On March 28, a group of attorneys general from 16 states and D.C., led by New York Attorney General Eric T. Schneiderman, issued a statement expressing their intent to fight the CPP’s repeal. “We won’t hesitate to protect those we serve—including by aggressively opposing in court President Trump’s actions that ignore both the law and the critical importance of confronting the very real threat of climate change,” the statement reads.
  • In letters sent to state governors on March 30, EPA Administrator Scott Pruitt stated: “It is the policy of the [EPA] that States have no obligation to spend resources to comply with a Rule that has been stayed by the Supreme Court of the United States.” (A February 9, 2016 Supreme Court Order stayed the CPP pending review in the D.C. Circuit.)  The letter sent to Kentucky Governor Matt Bevin is available online from EPA.
  • Yesterday, EPA announced in the Federal Register that it will withdraw three proposed rules implementing the CPP: the Federal Implementation Plan for the CPP’s greenhouse gas emission guidelines, its model training rules implementing those guidelines, as well as the Clean Energy Incentive Program design details. Citing last week’s Executive Order, the Notice states: “At this time, the EPA is not under an obligation to finalize these rulemakings, nor is there a time-sensitive need for them given the Supreme Court stay of the CPP.”
  • Today, EPA announced in the Federal Register that it is initiating its review of the CPP, explaining that in light of last week’s Executive Order, it would “reevaluate whether this Rule and alternative approaches are appropriately grounded in EPA’s statutory authority and consistent with the rule of law.” EPA will also review the compliance dates set by the CPP, since some of these dates “have passed or will likely pass while the CPP continues to be stayed.”  A rulemaking proceeding will be forthcoming.

New Source Performance Standards.  EPA also announced today that it will review its CO2 New Source Performance Standards for New Power Plants, as well as the New Source Performance Standards for the Oil and Natural Gas Sectors.  The Notices explain that review of these rules was initiated by the President’s March 28 Energy Executive Order, and serve as advance notice of forthcoming rulemaking proceedings.  Last week, EPA moved to hold the CO2 NSPS litigation in abeyance while the agency conducts its review of the rule.  On March 30, the D.C. Circuit removed the April 17, 2017 date for oral argument from its calendar pending its decision on the motion.

Effluent Limitations for Steam Electric Power Generation (40 C.F.R. pt. 423).  Finally, on March 25, the Utility Water Act Group petitioned EPA for reconsideration and for an administrative stay of rules setting federal limits on the levels of toxic materials that can be discharged in power plant wastewater.  The petition argues in part that the Rule is “inconsistent with the President’s regulatory reform agenda reflected in recent executive orders,” referencing February’s Regulatory Reform Order and the “One-In, Two-Out” Order released in January.  EPA has not yet issued a decision on the petition.

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