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Agency Doesn't Need Public Permission to Withdraw Proposed Regulations
Photo Credit: NRDC (link)

Federal Regulation, Judicial Stays, and the Right to Appeal

J. Kennerly Davis, Brian Taylor Goldman January 03, 2017
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The election results have raised serious doubts about the future of President Obama’s Clean Power Plan (“CPP” or “Plan”).  During the campaign, President-elect Trump repeatedly moved to kill the Plan outright.

There are, of course, many legal complexities associated with the requirements of the Clean Air Act and federal administrative procedure.  Observers differ about the options available to the new administration, and about whether the Plan will actually be repealed or simply modified to some extent. [Read More]

Executive Branch Review

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Members of Congress File Amicus Brief in Opposition to EPA’s Clean Power Plan

A Member of Practice Groups Leadership March 10, 2016
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On February 23, 2016, the Chairman of the Senate Environment and Public Works Committee, Sen. James Inhofe (R-OK), joined by 204 other Members of Congress, filed an amicus brief with the D.C. Circuit in opposition to EPA’s Clean Power Plan. The brief argues, among other things, that the Clean Power Plan violates the Clean Air Act’s foundational principle of cooperative federalism... [Read More]

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Agency Doesn't Need Public Permission to Withdraw Proposed Regulations
Photo Credit: NRDC (link)

SCOTUS Issues Stay on EPA's Clean Power Plan

Daren Bakst, Nicolas Loris February 12, 2016
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In a significant setback to the Obama administration’s climate agenda, five Supreme Court justices prevented the Clean Power Plan from taking effect until after a challenge from 25 states, four state agencies, and dozens of industry groups until the review in the courts has been completed. Chief Justice John G. Roberts and Justices Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas voted to stay the implementation of the rule, while 4 others would have denied the challengers’ application for a stay. [Read More]

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Article: Supreme Court Season of Turmoil

The Supreme Court Learns a Lesson

Susan E. Dudley February 11, 2016
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In a highly unusual action on Tuesday, the U.S. Supreme Court ordered EPA to halt implementation of its Clean Power Plan (CPP) rule—the centerpiece of the Obama administration’s climate strategy—while a 27-state challenge works its way through the courts. Perhaps the Justices learned a lesson from their recent experience with EPA’s Mercury & Air Toxics Standards (MATS) rule.  Because that rule remained in place during court challenges, by the time the Supreme Court ruled against EPA last summer, the majority of electric utilities had already made the irreversible investments needed to comply. Read more at Forbes.

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Supreme Court Puts Brakes on EPA Effort to “Aggressively Transform” Domestic Energy Industry

Karen Harned February 10, 2016
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It is no secret that climate change policy has been at the top of the Obama Administration’s priority list from the beginning. In many respects, the President and the Environmental Protection Agency have been very successful in their efforts to “aggressively transform” the domestic energy industry so that carbon emissions are dramatically reduced. But on February 9, the Supreme Court—which has clearly been observing the Administration’s penchant for governing with a ‘pen and a phone’—decided the courts and the country needed to take a collective deep breath to review (on the front end) whether this whole “transformation” is even legal. [Read More]