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Court freezes Clean Power Plan lawsuit, signaling likely end to Obama’s signature climate policy

The American Electric Power coal-burning plant in Conesville, Ohio. (Michael Williamson/The Washington Post)
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A federal court on Friday granted the Trump administration’s request to suspend lawsuits against the Clean Power Plan rule, signaling the likely end of President Barack Obama’s signature climate policy.

The order from the U.S. Court of Appeals for the District of Columbia stays litigation against the Environmental Protection Agency rule for 60 days. It does not indicate whether the D.C. Circuit will return the rule to the agency, although the EPA did not ask for it to do so. Instead, the order asks for guidance on whether to send the regulation back altogether.

“Pursuant to the president’s executive order, Administrator [Scott] Pruitt has already announced that EPA is reviewing  the Obama Administration’s Clean Power Plan,” said agency spokesman J.P. Freire. “We are pleased that this order gives EPA the opportunity to proceed with that process.”

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Opponents of the Obama-era rule, which sought to impose the first-ever federal limits on existing power plants, hailed the decision.

“The D.C. Circuit has done the right thing,” David Rivkin, a constitutional lawyer who represented the 28 states that sued over the regulation, said in an interview. “It is indeed the death knell of the Clean Power Plan. In effect, the previous administration has only itself to blame. Many of the rules it has done have been plagued by fundamental constitutional infirmities.”

Senate Environment and Public Works Committee Chairman John Barrasso (R-Wyo.), called the move “a win for Wyoming’s energy workers.”

But environmental and public health groups, which supported the move to cut carbon pollution from the power sector by 32 percent below 2005 levels, predicted they could still prevail in court.

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“The Supreme Court is clear that EPA has a duty to protect Americans from dangerous climate pollution under our nation’s clean air laws, and Environmental Defense Fund will take swift action to ensure that EPA carries out its responsibilities under the law,” said EDF general counsel Vickie Patton, whose group is a party to the case.

Sean Donahue, an attorney representing the Environmental Defense Fund in the case, noted that EPA has not asked for the court to return the rule because that would effectively lift the stay the Supreme Court put on the Clean Power Plan last year.

Joanne Spalding, chief climate counsel for the Sierra Club, said in an interview that Friday’s action doesn’t mark the end of the Clean Power Plan, despite what opponents might claim. “Not at all,” she said. “We will be arguing that the court should either decide the case, or it should remand the rule to EPA, which would have the effect of lifting the Supreme Court’s stay,” Spalding said.

Trump signed an executive order a month ago that instructed the EPA to rewrite rules limiting carbon from new and existing power plants, and he ordered Attorney General Jeff Sessions to ask the D.C. Circuit to suspend litigation involving both regulations.

The Obama-era rule limiting carbon emissions from any new, modified and reconstructed power plants remains in force because the Supreme Court did not suspend it.