Immediately after President Trump signed Tuesday’s Executive Order, EPA Administrator Pruitt issued notices starting the process of rolling back the carbon pollution limits in both the Clean Power Plan (CPP) for existing power plants and the new source performance standards (NSPS) for new ones.
NRDC and our allies are fighting back in court.
The notices (here and here) say that the EPA is reviewing the rules and preparing to start proceedings, if appropriate, to suspend, revise, or rescind them. A similar notice is expected soon for the NSPS for methane pollution from new sources in the oil and gas sector.
In the cases challenging the CPP (West Virginia v. EPA) and the NSPS (North Dakota v. EPA), the Justice Department filed motions Tuesday night asking the D.C. Circuit Court of Appeals to hold the cases in abeyance (i.e., suspend the litigation) until 30 days after EPA completes its proceedings to change or revoke the rules.
NRDC and our allies (states, power companies, and environmental organizations who are intervenors in the case defending the CPP) strenuously oppose the request to suspend this litigation. We’ll file our papers next week asking the court to deny the motions and continue on to decide the validity of the CPP.
The situation is the same in the NSPS case (except that the power companies are reserving their rights to oppose). On Thursday, the court issued an order postponing the impending oral argument—scheduled for April 17th—but expressly not yet deciding the government’s abeyance motion.
If the court grants DOJ’s motions for abeyance, the court would stop working on the cases while the EPA undertakes rulemaking over potential changes.
- In the CPP case, this would mean that the court does not issue its long-awaited opinion. The Supreme Court’s stay of the CPP would likely remain in effect; what was originally intended as a short-term stay pending litigation would become a long-term suspension of the CPP for as long as EPA takes to complete a new rulemaking. NRDC and our allies would defend the CPP strenuously in the rulemaking, and take the EPA to court at the end.
- In the NSPS case, the standards covering new and modified power plants would remain in effect during the rulemaking. We would vigorously fight any rollback or suspension of the rules, and we would take the EPA to court whenever any such action is taken. A suspension would itself require notice and opportunity for public comment, and we would have the right to judicial review.
If the court denies DOJ’s motions, the cases will go forward regardless whether the EPA starts to change the rules.
- In the CPP case, the 10-member en banc court that heard a whole day of arguments in September would issue its decision on the legality of the CPP.
- In the NSPS case, the court would likely reschedule oral argument. If the Trump administration won’t defend the standards, NRDC and our allied intervenors will take over that role.
The Executive Order also tasks EPA and other agencies with conducting a wide-ranging review of energy and environmental regulations that are considered a burden on the energy industry. In 45 days, agencies must respond to the White House with a plan to carry out this review. In 120 and 180 days, respectively, they must submit a draft and final report describing actions they plan to take. Additional regulatory proceedings to suspend, revise, or rescind rules could follow the final report or come even earlier.
NRDC and our allies will fight against these actions at every step. We will continue defending these critical climate safeguards in the court and before Scott Pruitt’s EPA. We’ll continue to hold President Trump and Administrator Pruitt accountable for their climate destruction plan in the court of public opinion.
While the fight will be long, we know the public supports climate action and opposes Trump’s rollbacks. We are confident we can preserve the EPA’s authority and obligation to regulate carbon pollution under the Clean Air Act.
Additional information on this week’s Executive Order and its implications can be found here: