Parties Weigh in on Abeyance Vs. Remand in CPP and NSPS Cases

A few weeks ago, the D.C. Circuit ordered the parties in both the Clean Power Plan (CPP) litigation and the New Source Performance Standards (NSPS) litigation to file briefs addressing whether these cases should be remanded to EPA or held in abeyance.  Currently both cases are temporarily in abeyance for about another month and a half.  Meanwhile, EPA is conducting its review of both rules pursuant to the March 28, 2017 Executive Order on energy and environmental policy.

Yesterday the parties in both cases filed their briefs arguing in favor of either remand or abeyance.  One key difference between the briefings in the two cases is that the NSPS rule is currently in effect while the CPP rule has been put on hold by the Supreme Court’s stay of that rule pending completion of judicial review.  As a result, if the court were to continue to hold the CPP case in abeyance, the stay of that rule would remain in effect.  In contrast, were the court to remand the CPP case to the EPA, the CPP rule would go back into effect (or at least, according to EPA, remand would “raise substantial questions regarding the stay’s validity”).  The stakes are somewhat less high in the NSPS case, since the NSPS rule will still remain in effect whether the court holds the case in abeyance or remands it to the EPA.

In West Virginia v. EPA (the CPP case), EPA argued in favor of abeyance rather than remand.  EPA stated that remand would cause it to spend its limited staff and resources on interim administrative actions (such as extending the CPP’s current enforcement deadlines) instead of focusing on its review and potential revision of the entire rule.  The states and entities challenging the CPP agreed with EPA that the case should continue to be held in abeyance.  They argued that doing so would protect their right to judicial review of the rule should EPA ultimately decide not to revise or rescind the CPP, and that abeyance would be consistent with the court’s ordinary practice as well as with the reasoning behind the Supreme Court’s stay of the CPP.  Arguing in favor of remanding the case to the EPA were state and municipal supporters of the CPP, a group of public health and environmental organizations, a group of power companies who support the rule, and a group of renewable energy companies.  They all argued that holding the case in abeyance, thus extending the stay of the rule, would result in inappropriate and indefinite delay of EPA’s Clean Air Act responsibilities.  However, each of these briefs also urged the court to issue an actual decision in this case, instead of either holding it in abeyance or remanding it to the EPA.

The parties filed five similar briefs in North Dakota v. EPA (the NSPS case).  As in its brief in the CPP case, EPA requested that the court continue to hold the case in abeyance while it reviews the rule.  Not surprisingly, the NSPS’s challengers agreed, again arguing that holding the case in abeyance would preserve their right to judicial review should EPA not revise or rescind the rule.  On the other side, state and municipal supporters of the rule, a group of public health and environmental organizations, and a group of power companies in support of the rule urged the court to hold oral arguments and decide the case on its merits.  However, if the court chooses not to decide the case on its merits, these groups argue that there is little difference between the impacts of remand as compared to abeyance given that the rule will remain in effect either way.

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