D.C. Circuit Court Pauses Clean Power Plan Litigation for Sixty More Days

Judges Underscore EPA’s Legal Obligation to Regulate Climate Pollution

August 8, 2017
Sharyn Stein, 202-572-3396, sstein@edf.org

(Washington, D.C. – August 8, 2017) The U.S. Court of Appeals for the District of Columbia Circuit today announced that long-pending litigation over the Clean Power Plan, our only national limits on carbon pollution from existing power plants, would remain in abeyance for 60 days. Two concurring judges reiterated that the Environmental Protection Agency (EPA) has a legal duty to regulate climate pollution under the Supreme Court’s landmark precedent in Massachusetts v. EPA.

The court issued an order, joined by the ten-judge en banc panel that heard the case last September, that pauses the litigation (or “holds it in abeyance”) for sixty more days, and requires EPA to file status reports with the court every thirty days.

The order includes a concurring statement by Judges Tatel and Millett pointing out that the EPA has an “affirmative statutory obligation to regulate greenhouse gases” and expressing concern that an indefinite delay in the litigation could impede EPA from complying with that obligation.

“We are in a race against time to protect our communities and families from the clear and present danger of climate pollution. Just today, we were reminded of compelling evidence of the dangers to all Americans in a draft report for the National Climate Assessment. And the Supreme Court has ruled three times that the Environmental Protection Agency has a responsibility under our nation’s clean air laws to protect Americans from the pollution that causes climate change,” said Tomás Carbonell, Directory of Regulator Policy and Senior Attorney for Environmental Defense Fund, which is a party to the case. “EDF, along with millions of concerned Americans, will keep working to ensure EPA complies with its legal obligations and acts to protect our nation from climate pollution.”

The Clean Power Plan is the single largest step the U.S. has ever taken to address the threat of climate change. When fully implemented, it will reduce greenhouse gases from the power sector to 32 percent below 2005 levels – and will save up to 3,600 lives, prevent up to 90,000 childhood asthma attacks, and avoid more than 300,000 missed school and work days each year.

Opponents of the Clean Power Plan challenged it in court. In a highly unusual move, the Supreme Court issued a stay for the plan in February 2016, before the case was briefed and argued on the merits.

The full D.C. Circuit heard oral argument en banc in litigation over the Clean Power Plan in September of 2016.

Before the D.C. Circuit issued a decision in the case, the Trump Administration filed requests for indefinite abeyance while it considered whether to roll back the Clean Power Plan. The court placed the case temporarily in abeyance in April.

In May, Environmental Defense Fund and a coalition of 14 other public health and environmental organizations urged the court to rule on the merits in the litigation. Today the court announced it would temporarily hold the case in abeyance for sixty more days.

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