The Justice Department is prodding federal appeals court judges to delay their ruling on the Obama-era Clean Power Plan until the Environmental Protection Agency has time to tweak the plan itself using President Trump’s latest executive order as a guide.
A delay would help the Trump administration ensure that the judges don’t rule favorably on any aspect of the rule that they are likely to gut in the coming months.
“EPA should be afforded the opportunity to fully review the Clean Power Plan and respond to the president’s direction in a manner that is consistent with the terms of the executive order, the Clean Air Act, and the agency’s inherent authority to reconsider past decisions,” federal attorneys argued in a brief sent to the court Wednesday.
“Deferral of further judicial proceedings is thus warranted,” the brief said.
Trump’s energy independence order signed on Tuesday directed EPA chief Scott Pruitt to begin a review of the Obama administration’s climate plan toward the eventual goal of rescinding it. Meanwhile, a 10-judge panel of the D.C. Circuit Court of Appeals is reviewing a lawsuit by 28 states and hundreds of industry groups opposing the regulation.
The court is expected to issue a decision in the coming months, and it is unclear if it will grant the Justice Department’s request.
The brief explained to the court that the EPA is closely evaluating the Clean Power Plan, in which “the prior positions taken by the agency with respect to the rule do not necessarily reflect its ultimate conclusions.”
The prior positions of the EPA represented in the court were that of the Obama administration, which was defending the regulation from states’ claims that the EPA overstepped the limits of it authority in drafting the regulation, and that the climate plan was unconstitutional.
Pruitt, who was formerly the attorney general of Oklahoma, was a lead voice in opposing the Clean Power Plan in the litigation before the D.C. Circuit court ahead of becoming the administrator of the EPA.
The Clean Power Plan was halted by the Supreme Court over a year ago, which states suing the agency took as vindication that the high court agreed with its claims, though the court did not lay out the reasons fro staying the plan.
The plan requires that states reduce their greenhouse gas emissions a third by 2030 to help curb the effects of global warming.
