In filings submitted Wednesday to the U.S. Court of Appeals for the District of Columbia Circuit, state and environmental lawyers ran through their go-to arguments against pausing the case, including claims that live legal issues remain and that the public will suffer more the longer the carbon-slashing rule is sidelined.
But the recent filings also framed the argument in a new way, suggesting that a D.C. Circuit decision to put the monumental legal battle on ice would actually flout the terms of a Supreme Court order pausing the Clean Power Plan last year.
"The requested abeyance perverts the purpose of the Supreme Court's stay, which imposed only a temporary halt in the enforcement of the Clean Power Plan pending judicial review," a coalition of environmental and public health groups told the D.C. Circuit this week. "The Supreme Court explicitly contemplated that the stay would last only until this Court's decision on the merits of the Rule and an opportunity for Supreme Court review."
The groups led with that argument, calling it one of several "fatal defects" of EPA's attempt to pause the case. Their filing notes that Clean Power Plan challengers asked the Supreme Court to issue the stay under a provision of the Administrative Procedure Act that authorizes courts to pause regulations "pending judicial review."
"What EPA asks for here has nothing to do with a judicial remedy, making judicial review effective, or with judicial review of the Clean Power Plan at all," the groups argue. "Instead, EPA seeks to halt judicial review, while at the same time benefitting from the Supreme Court's stay 'pending ... review.'"
Environmental lawyer Sean Donahue, who is representing the groups, expanded on the position yesterday, noting that the five Supreme Court justices who voted in February 2016 to stay the rule could not have contemplated such a drawn-out courtroom battle.
Read more at Enviros Invoke SCOTUS in Bid to Keep Legal Battle on Track
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