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January 25, 2016

Federal Court Allows EPA Power Plant Regulations To Move Forward – What Happens Next And How Will The Election Affect The Outcome?

Last Thursday, the U.S. Circuit Court of Appeals for the District of Columbia ruled the Obama administration can move forward with the implementation of its Clean Power Plan (CPP) while legal challenges to the regulation move forward. (As a reminder, the Clean Power Plan refers to a new Environmental Protection Agency rule that regulates emissions from existing power plants.) The court ruled the entities challenging the constitutionality of the CPP do not face “immediate burdens” from the new regulations and so a stay in implementation was not necessary. 

According to The Wall Street Journal (subscription required), “More than 30 lawsuits have been filed since October challenging the EPA’s authority across a range of grounds, some of them little explored by the courts.” At least 27 states have joined those suits. 

While the court’s ruling was a loss for industry and the U.S. states challenging rule, the D.C. Circuit Court did agree to an expedited timeline for the legal challenge; the court is now scheduled to hear oral arguments in the case on June 2, 2016. 

The expedited challenge means the fate of the rule could be determined by the outcome of the 2016 election. As a reminder, U.S. states need to submit their plans for implementing the rule to the Environmental Protection Agency (EPA) by Sept. 6, 2016 or ask the EPA for an extension. According to National Journal (subscription required), if the court upholds the rule before then, or if it is has not ruled, the EPA can go ahead and create its own plans for states that either have not submitted their own plans or have not been granted an extension. If the D.C. appeals court overturns the Clean Power Plan before that Sept. 6 deadline, the states are not obligated to submit anything to the EPA. 

No matter what the D.C. appeals court rules – in favor of the Obama administration and the EPA or in favor of industry and the states – the ruling could be appealed to the Supreme Court and, as National Journal also explains, it’s for that reason the outcome of this matter is tied directly to the 2016 presidential election. As National Journal explains, the Republican candidates currently running for president have made it clear they oppose the Clean Power Plan – therefore they would likely not appeal to the Supreme Court a circuit court ruling that struck down the Clean Power Plan. The litigation would end, and the rule would die with it. The Democratic candidates in the race, however, favor the EPA’s regulation and would continue litigation if the D.C. Circuit Court upholds Clean Power Plan.