To Abey, or Not to Abey. That is the Question.

Parties on both sides of the Clean Power Plan (CPP) and New Source Performance Standards (NSPS) litigation have filed responses to the Department of Justice’s (DOJ) motions to hold the cases in abeyance, with those challenging the rules filing in support of the motion, and those supporting the rule opposing.  In both dockets, the DOJ’s motions, and the filings of the parties that overlap between the two cases, are similar.  They are not identical, however, as the procedural postures of the respective cases differ—i.e., the Clean Power Plan has been fully briefed and argued and is stayed pending judicial review, versus the New Source Performance Standard which has been fully briefed but not yet argued and is in effect.

The DOJ’s motions provide notice to the court of: (1) the President’s “Promoting Energy Independence and Economic Growth” Executive Order (EO) directing EPA to review the rules; (2) EPA’s initiation of a review of the rules; and (3) “if appropriate, a forthcoming rulemaking related to the Rule and consistent with the Executive Order.”  The motions go on to state that, “[p]ursuant to these developments, the [Rule] is under close scrutiny by the EPA, and the prior positions taken by the agency with respect to the Rule do not necessarily reflect its ultimate conclusions.  EPA should be afforded the opportunity to fully review the [Rule] and respond to the President’s direction.”

As to West Virginia v. EPA (the CPP case), the DOJ claims that abeyance is warranted “to avoid compelling the United States to represent the current Administration’s position on the many substantive questions that are the subject of EPA’s nascent review.”  The DOJ further claims that a D.C. Circuit decision will likely lead to a cert petition and further briefing “prior to EPA’s completion of its review,” and that “[t]his could call into question the fairness and integrity of the ongoing administrative process.  Holding the present challenges in abeyance will preserve the status quo.”

Similarly, as to North Dakota v. EPA (the NSPS case), the DOJ claims that were the Court to hold oral argument “in the midst of the new Administration’s review … counsel would likely be unable to represent the current Administration’s position on the many substantive questions that are the subject of that nascent review.  Nor would it be proper for counsel to speculate as to the likely outcome of the current Administration’s review, as any such speculation could call into question the fairness and integrity of the ongoing administrative process.”

The DOJ requests the “Court to hold these cases in abeyance while the agency conducts its review …, and requests that the abeyance remain in place until 30 days after the conclusion of review and any resulting forthcoming rulemaking, with motions to govern further proceedings due upon expiration of the abeyance period.”

In their responses supporting the Motions (CPP response here, NSPS response here), Petitioners and Petitioner-Intervenors state that courts have granted the government’s request for abeyance in pending litigation “when an agency is revisiting a challenged regulation, especially during a transition from one presidential administration to another” (CPP) and “to afford it the opportunity to address policy changes due to changes in presidential administrations” (NSPS).  Petitioners and Petitioner-Intervenors further claim that abeyance would “avoid the possibility of the Court issuing an opinion that could be rendered both moot and advisory by EPA’s action to revise or rescind the Rule.”  As to the CPP, Petitioners and Petitioner-Intervenors claim that abeyance would “simply preserv[e] the status quo” because, due to the stay, a Court decision “would have no practical effect while EPA revisits the Rule.”

State and Municipal Intervenor-Respondents’ oppositions to the Motions (CPP response here, NSPS response here) point to the lengthy proceedings that have already taken place (including oral argument before a full court in West Virginia and that briefing has been completed in North Dakota).  As to the CPP, the State and Municipal Intervenors state that EPA is asking “for an open-ended delay in the litigation” and that “[t]he practical effect of an abeyance would be to improperly delay the implementation of the Rule indefinitely without either timely completing the judicial review contemplated by the Supreme Court or engaging in the notice-and-comment procedures required to revoke or modify a regulation.”  As to the NSPS, the Intervenors state that “[n]either the Rule nor EPA’s duty to regulate can be repealed by executive order,” and that “any change to the Rule is merely speculative at this time.”  In both cases, the intervenors make clear that even if EPA may alter its positions, they will continue to defend the rules.

The Public Health and Environmental Intervenor-Respondents also filed oppositions to the Motions in both cases (CPP response here, NSPS response here), raising similar concerns as the State and Municipal Intervenors, stating, among other things, that a future rulemaking is speculative and that “[t]hrough the abeyance motion, EPA seeks the Court’s assistance to do what it could not do otherwise: effectively and indefinitely suspend a duly promulgated rule without proposing, taking comment on, justifying, or defending in court any legal or factual premises that might support such a result.”  The Public Health and Environmental Intervenors additionally discuss the lengthy administrative history behind the promulgation of the rules, stating that “Respondent-Intervenors have, for well over a decade, sought EPA standards to limit power plants’ climate-destabilizing and health-endangering carbon dioxide emissions.”  These intervenors state that if EPA is unwilling to defend the rules, they “stand ready” to do so.

Additional oppositions were filed by Advanced Energy Economy, American Wind Energy Association/Solar Energy Industries Association, and a group of power companies who intervened to support the rule.

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