The Nickel Report

In a series of orders this week, the US Court of Appeals for the DC Circuit granted motions by EPA to pause cases challenging several Obama-era regulatory actions while the new administration reviews those rules. With those cases on hold, the dispute over the fate of those rules will move out of the courts and into the administrative process.

In light of the Trump administration’s announced regulatory review, the DC Circuit had prior to this week decided to cancel previously scheduled oral arguments in two other cases at EPA’s request: one challenging the 2015 national ambient air quality standard (NAAQS) for ozone and one challenging EPA’s new source performance standards (NSPS) for greenhouse gases emitted from new power plants. The court continued the trend on April 24 by canceling oral argument in challenges to EPA’s rule requiring states to revise provisions in their State Implementation Plans addressing emissions during startup, shutdown and malfunction periods. On April 27, the court followed up by placing in abeyance two cases related to EPA’s Mercury and Air Toxics Standards (MATS) Rule for coal-fired power plants: one challenging EPA’s Supplemental Finding, which purported to show that the MATS Rule is legally justified even after considering costs, and one challenging EPA’s refusal to reconsider aspects of MATS.

Finally, the DC Circuit capped off the week by placing in abeyance the challenges to EPA’s “Clean Power Plan,” which would limit greenhouse gases from existing power plants, and its greenhouse gas NSPS for new power plants. While the relief granted in these cases appears to be more limited—the challenges are to be held for 60 days while the court considers how best to manage them—it nonetheless will provide breathing room for the Trump administration’s review.

In a sense, however, the court’s treatment of these cases is—as the petitioners in one case put it—“unremarkable.” Under the US Constitution, the courts are prohibited from issuing “advisory opinions”—that is, deciding issues of law when there is no live dispute before the court. To avoid that possibility, in the past courts have paused cases challenging agency actions that might be substantially changed or revoked by a new administration before the case is resolved. For example, when the Obama administration took office in 2009, it announced its intent to re-examine the previous administration’s 2008 ozone NAAQS. At EPA’s request, the DC Circuit paused then-pending challenges to that rule—much the same as it just did for challenges to that rule’s successor.

In fact, the most remarkable aspect of the recent abeyance proceedings has been the vociferous opposition of environmental advocacy organizations, public health groups and states that support the Obama-era regulations being challenged. These groups have argued forcefully against any pause in the cases, claiming that delay would harm their interests and that they themselves are willing to defend the challenged regulations if EPA cannot. These groups’ aggressive arguments send a clear message about their resolve to push back against any effort by the Trump administration to roll back those regulations. But for now, they will have to focus their efforts on the administrative process, where EPA’s regulatory review is just getting underway.