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Climate Change Hero

Climate Change Blog

  • 16
  • May
  • 2017


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D.C. Circuit Suspends Proceedings in Clean Power Plan Case

On Friday, April 28, 2017, the United States Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) granted the U.S. Environmental Protection Agency’s (“EPA’s”) request to suspend litigation in two cases considering the Clean Power Plan (the “CPP”). The D.C. Circuit’s orders come after the D.C. Circuit heard en banc oral arguments in one of the cases, West Virginia v. EPA, 15-1363, last year. The D.C. Circuit’s orders required the parties to file supplemental briefing on the question of whether the CPP should be remanded to EPA, which they have filed. A key question to be decided based on this briefing is the effect of a remand on the Supreme Court’s February 2016 stay on the CPP. This post discusses the background of the CPP cases, the D.C. Circuit’s orders, and potential scenarios if the D.C. Circuit decides to remand the CPP to EPA.

Background on the CPP Cases

On March 28, 2017, the same day that President Trump signed an Executive Order on Promoting Energy Independence and Economic Growth (the “Climate Change Executive Order”) calling for EPA to take immediate action to suspend, revise or rescind the CPP, EPA filed separate motions to suspend judicial proceedings in two cases considering the CPP and related regulations. These cases, which are both pending before the D.C. Circuit consider the validity of (1) the CPP and (2) the New Source Performance Standards for greenhouse gas (“GHG”) emissions from power plants under section 111(b) of the Clean Air Act (the “GHG NSPS for Power Plants”).

The case considering the CPP, West Virginiav.EPA, 15-1363, is a consolidation of challenges to the CPP that has taken a winding path through the federal courts. In February 2016, the Supreme Court in an unprecedented order stayed implementation of the CPP pending review by the D.C. Circuit in this case. The Supreme Court’s order came after the D.C. Circuit rejected a similar stay. After the Supreme Court’s stay issued, the D.C. Circuit then took its own highly unusual step of bypassing panel arguments and proceeding directly to en banc review, culminating in oral arguments before 10 judges on the Circuit in September 2016. Opinions in en banc proceedings generally take longer to issue, so it is unclear how close the D.C. Circuit was to issuing an opinion in this case when it granted EPA’s motion to suspend proceedings.

North Dakota v. EPA, 15-1381, is a consolidation of challenges to the GHG NSPS for Power Plants but has a different procedural posture than the West Virginia case. Unlike the CPP, there is no stay in place on the GHG NSPS for Power Plants. North Dakota v. EPA was also scheduled for panel oral arguments on April 17, 2017, but the D.C. Circuit on March 30, 2017 issued an order removing the case from the oral argument calendar pending resolution of EPA’s motion to suspend proceedings.

Although these two cases involve distinct challenges to different agency rules, the states and other parties challenging these rules have recently argued that the cases are similar enough that they should be consolidated. On March 31, 2017, petitioners challenging the GHG NSPS for Power Plants in North Dakota v. EPA, 15-1381, filed motions in West Virginia v.EPA, 15-1363, to consolidate these two cases. 

EPA’s Motions and Responses

On March 28, 2017, EPA filed nearly identical motions in the two cases outlined above seeking suspension of judicial proceedings. These motions provide three main justifications for a suspension of proceedings: (1) The Climate Change Executive Order’s requirement for review of the CPP and GHG NSPS for Power Plants “mark substantial new developments that warrant holding this litigation in abeyance,” (2) judicial economy warrants a suspension of proceedings while EPA reviews these rules, and (3) continued proceedings on these rules could “call into question the fairness and integrity of the ongoing administrative process.”

Respondent states and local governments and environmental non-governmental organizations (“ENGOs”) raised several arguments in response, including the following: (1) These cases are ripe for review because there are live disputes, and the Climate Change Executive Order does not change that; (2) judicial economy would be served by deciding these cases because of how many resources have already been expended in considering them; (3) the states and local governments and ENGOs would be prejudiced from the suspension of proceedings; (4) by seeking to suspend proceedings in West Virginia v. EPA, EPA is acting outside the terms of the order by which the Supreme Court stayed enforcement of the CPP; and (5) EPA’s request amounts to suspension of agency rules without notice and comment rulemaking — which would be a violation of the CAA and the Administrative Procedures Act (“APA”).

The D.C. Circuit’s Order and its Effect on the Supreme Court’s Stay of the CPP

On April 28, 2017, the D.C. Circuit, in two brief orders that do not contain the court’s reasoning, granted EPA’s motions to suspend proceedings in West Virginia v. EPA and North Dakota v. EPA for 60 days from the date of court’s orders. The court also ordered EPA to file status updates every 30 days for both of these cases and held off on deciding whether to consolidate these two cases, ordering that “consideration of the motions to sever and consolidate be deferred pending further order of the court.”

In suspending proceedings in West Virginia v. EPA and North Dakota v. EPA, the D.C. Circuit ordered the parties to file supplemental briefing to address whether these cases should be remanded to the agency rather than held in abeyance. The supplemental briefs were submitted on May 15, 2017. A key question that will need to be resolved in the parties’ briefing is the effect that a remand will have on the Supreme Court’s February 2016 stay on the CPP. A remand to EPA could take several forms, including (1) the case remaining pending at the D.C. Circuit while EPA reviews the CPP or (2) the case being removed entirely from the D.C. Circuit’s docket while EPA reviews the CPP.

According to the Supreme Court order issuing the stay, the CPP is stayed, “pending disposition of the applicants’ petitions for review in the [D.C. Circuit]” or, if the Supreme Court grants certiorari, then while the case is pending before the Supreme Court. If the D.C. Circuit determines a remand to EPA is appropriate and the remand involves the case remaining pending while EPA reviews the CPP, then the Supreme Court’s stay will be unaffected. If such a remand instead involves removing the case entirely from the D.C. Circuit’s docket, there is a significant question about whether this will cause the Supreme Court’s stay on the CPP to lose its effect. Proponents of the CPP, including the Natural Resource Defense Counsel, have taken the position that a remand to EPA would put the CPP into force until EPA goes through the rulemaking process to rescind the CPP. This, in turn, may place EPA in the position of seeking a supplemental stay on the CPP or pursuing extensions on implementation deadlines through direct final rulemaking. In either of these scenarios, a new round of litigation that could potentially reach the Supreme Court appears likely.


The D.C. Circuit suspended proceedings in West Virginia v.EPA and North Dakota v. EPA while at the same time signaling a move that could require EPA to either seek to extend implementation deadlines on the CPP or seek an additional stay on the CPP. The Supreme Court’s February 2016 stay on the CPP was subject to West Virginia v.EPA remaining pending at the D.C. Circuit. In suspending proceedings in West Virginia v.EPA, the D.C. Circuit requested and received briefing on whether it should instead remand the CPP back to EPA. If the D.C. Circuit does so, and if the case does not remain pending at the D.C. Circuit, then the Supreme Court’s stay may lose its effect.


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Travis Hunt

Travis Hunt Associate