Defending the Climate in the Trumpocene: NRDC Goes to Court
Published by the Natural Resources Defense Fund
With the President’s Climate Destruction Plan last week, the world officially entered the Trumpocene.
Future geologists will define the Trumpocene as a brief period – lasting a maximum of four years – of official climate denial and presidential attempts to roll back climate action, prop up declining energy firms, stop scientific and economic research on the health of our home planet, and destroy the institutions we counted on to protect public health and welfare.
NRDC is fighting back. Yesterday NRDC and allies went to court to stop the first step in the President Trump’s and EPA Administrator Scott Pruitt’s scheme for scrapping President Obama’s Clean Power Plan and other climate pollution standards.
This post reports on the legal papers we filed yesterday to stop Trump’s and Pruitt’s plans. And as the Age of Trump unfolds, I’ll add new reports from time to time when we go to court to defend the climate.
Stopping Trump’s Stealth Scheme to Scrap the Clean Power Plan
Trump and Pruitt know they cannot legally change or repeal regulations with the stroke of a pen. The Clean Power Plan and other climate rules can be dismantled only through the same rulemaking process by which they were created.
So, on the same day that Trump signed the Executive Order, Pruitt issued a notice starting a “review” of the Clean Power Plan, to be followed in all likelihood by a rulemaking to “suspend, revise, or rescind” it. The notice acknowledges that EPA will have to follow the required legal steps for any such rulemaking: issue a proposal, hold a public hearing and take public comments, and publish a final rule. The new decision must be supported by a compelling legal rationale and factual record – one strong enough to pass muster when NRDC and our allies take them to court.
That’s going to be a long and hard road for the Administration. It won’t be quick or easy for Pruitt to come up with alternative facts to counter the massive scientific, technical, and economic record that backs up the Clean Power Plan, or alternative law to counter the Plan’s strong legal basis – not just campaign talk and tweets but solid stuff that will stand up in court. As the senior White House briefer on the Executive Order conceded, “whether two years, three years or one year, I don’t know. It’s going to take some time.”
Meanwhile the White House and Pruitt know that ten judges of the U.S. Court of Appeals for the District of Columbia are nearing their decision on the legality of the Clean Power Plan. It has been six months since the full court held an extraordinary seven-hour oral argument on the Plan – an argument that did not appear to go well for the state and industry challengers, including then-Oklahoma Attorney General Pruitt.
So the Trump team is trying a shortcut. They’ve filed a motion asking the ten-judge panel to hold the case in “abeyance” – i.e., put it in the deep freeze – and thus not to issue its decision, until the Administration is done with its multi-year review and rulemaking.
Here’s the diabolical part. Holding the case in abeyance would automatically extend the “stay” issued by a narrow 5-4 vote of the Supreme Court last year. The Supreme Court imposed the stay as only a temporary measure, to pause state implementation obligations until judicial review of the Clean Power Plan is completed. If the Plan withstands court scrutiny, the stay will end and implementation of these carbon-reducing rules would start.
But if the Trump team’s motion is granted, the temporary stay would be completely transformed. It would last for as long as EPA took to complete its review and rulemaking – in other words, for years.
Talk about perverse incentives. Pruitt could try to make the Clean Power Plan stay last indefinitely, for as long as he chooses to prolong the administrative process.
Presto! Pruitt would win a double bonus. He’d avoid a likely court decision upholding Obama’s centerpiece climate protection policy, and he’d effectively suspend the Plan indefinitely without having to justify his decision through the public rulemaking process and in court.
That brings me to how we’re fighting back. Yesterday, NRDC and our environmental partners filed our arguments with the Court of Appeals opposing Pruitt’s scheme to mothball the case and stretch out the stay indefinitely. A coalition of states and cities, power companies, and clean energy companies supporting the Clean Power Plan filed their papers too.
We gave the 10-judge panel five reasons why it should deny the Trump EPA’s motion:
- Granting the motion would flout the Supreme Court’s intent by transforming the temporary stay into a long-term blockage of the Clean Power Plan for an unlimited period.
- It would allow the Pruitt EPA to effectively scrap the Plan without having to go through the legally required rulemaking steps and defend his actions in a public process and in court.
- It would allow the Pruitt EPA to evade a judicial decision on the merits of the current Clean Power Plan. It came at the eleventh hour, after briefing and argument and six months of the court’s consideration, and mothballing the case would waste all those judicial resources. Instead, we urged the court to decide the validity of the current Plan, and in the process settle the key legal issues in dispute.
- We emphasized the urgency of acting on climate change. We’ve been seeking limits on power plants’ massive amounts of dangerous carbon pollution for 15 years. And all the while scientific evidence supporting action has gotten stronger. The adverse impacts are already upon us, and we cannot afford more delay.
- And we told the court that Pruitt’s arguments for putting the case on ice were insubstantial. The agency needs no such relief to propose a new rule if it wants to. Moreover, as “intervenors” in these cases, we’re legally entitled to keep defending the duly-adopted Clean Power Plan. If the government won’t do its job, we are ready, willing, and able.
Read our papers to learn more.
The court’s decision on this delay motion will likely come in a few weeks. And, we hope, so will the ruling on the Clean Power Plan.
Other Power Plant Cases
We are also opposing EPA’s efforts to put other climate cases in the deep freeze. These include the challenge to EPA’s carbon pollution standards for new power plants. The executive order tells EPA to start dismantling that standard too.
In contrast to the Clean Power Plan, the new source rules have not been stayed, and power companies building new plants have to comply with them. So for this rule, Pruitt hasn’t got a way to give his industry pals the relief they want except by going through the rulemaking process. Yet as with the Clean Power Plan, Pruitt wants to keep the court from ruling on the current standards.
The case is fully briefed and was supposed to go to oral argument before a three-judge panel on April 17th. The panel postponed the argument, however, until it decides EPA’s motion to hold that case in long-term abeyance.
We filed our papers opposing EPA’s motion yesterday. We told the court the case should be argued and decided now, not deferred indefinitely, in order to remove the cloud of legal challenges hanging over the new source standards, and to guide Pruitt on what his legal options are before he starts scrapping the rule. As with the Clean Power Plan, we’re ready to defend the standards even if EPA is not.
Oil and Gas Methane Cases
The same story is playing out for EPA’s and the Bureau of Land Management’s standards to curb the massive leaks of methane, a powerful climate pollutant, from the oil and gas industry. Trump’s executive order directs Pruitt and his counterparts in the Interior Department to start deep-sixing these critical protections.
Early this week, EPA filed its motion in the D.C. Circuit to mothball the industry challenges to its methane regulations. The same thing is expected for the BLM rules, which are being challenged in federal district court in Wyoming.
Like the new source standard for power plants, the EPA and BLM methane regulations are in effect, and companies are complying with them. We’ll file our papers in these cases soon.
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NRDC and our allies will fight Trump’s attacks on our climate in every way we can: In court, before the agencies, in Congress, in the media, and in the streets – join us for the People’s Climate March April 29th!
And stay tuned here for updates as we defend our climate in the Trumpocene.
Read the full article at: https://www.nrdc.org/experts/david-doniger/defending-climate-trumpocene-nrdc-goes-court
