A federal appeals court hearing consolidated legal challenges to the U.S. Environmental Protection Agency's replacement for the Obama-era Clean Power Plan set a briefing schedule that ties the rule's fate to the outcome of the 2020 presidential election.
The EPA had asked the U.S. Court of Appeals for the District of Columbia Circuit to fast-track the litigation over its Affordable Clean Energy, or ACE, rule, saying the agency's authority to regulate greenhouse gases under Section 111(d) of the Clean Air Act is an "issue of national importance." The agency specifically proposed a briefing schedule that aimed to have the D.C. Circuit hear oral arguments by May, which could have allowed the U.S. Supreme Court to issue a verdict on the legal merits of the rule before a Democrat potentially occupies the White House in 2021.
Finalized in June 2019, the ACE rule repealed and replaced the Obama administration's Clean Power Plan, the first nationwide regulation designed to curb planet-warming carbon dioxide emissions from existing coal- and gas-fired power plants. Unlike the Clean Power Plan, the ACE rule focuses exclusively on efficiency upgrades at coal plants that the EPA estimates would cut CO2 emissions from the U.S. power sector less than 1% by 2030 compared to a business-as-usual baseline. According to the EPA's analysis, the rule will also likely increase CO2 emissions in 15 states plus the District of Columbia compared to no regulation at all.
In replacing the Clean Power Plan, the Trump administration has started a high-stakes legal battle by adopting an interpretation of the Clean Air Act that says Section 111(d) of the statute does not allow the agency to set "outside the fence line" power plant compliance measures such as fuel switching and emissions trading.
The D.C. Circuit in November 2019 rejected the EPA's motion to expedite the ACE rule litigation and, at the same time, declined to grant a motion by environmental petitioners to hold the case in abeyance until the agency finalizes related changes to the Clean Air Act's New Source Review permitting program.
In response to that court order, the EPA proposed an even more compressed briefing schedule than the format laid out in its move to fast-track the case. However, the D.C. Circuit issued an order Jan. 31 setting a July 30 deadline for all final briefs in the litigation.
The D.C. Circuit often hears oral arguments between two and three months after a briefing is fully completed. Once the appeals court issues a final ruling, parties have 90 days from the date of the order to ask the Supreme Court to hear an appeal. The high court can then take months to act on such a request.
"Of course, things can change as we saw with the Clean Power Plan," said Misha Tseytlin, an attorney with the Troutman Sanders law firm. Tseytlin noted that the Supreme Court stayed the rule while he was representing the state of Wisconsin in its legal challenge to the regulation. "As a general matter, nearly all rules' fates turn on whoever is president," the lawyer said in a Feb. 3 interview.
In the case of the Clean Power Plan lawsuit, a full panel of judges eventually heard oral arguments nearly 160 days after the briefing in the case was completed. Following President Donald Trump's November 2016 election win, the D.C. Circuit refrained from issuing its ruling as the new administration initiated a notice-and-comment rulemaking to review and replace the Obama-era regulation. A Democratic administration is widely expected to withdraw the ACE rule in the same way if Trump loses his reelection bid.