On June 26, 2018, the D.C. Circuit Court of Appeals ordered that the proceedings challenging the Clean Power Plan remain in abeyance for 60 more days. Two judges wrote statements, both of which were joined by a third judge, indicating a disinclination to approve future abeyances. Judge Wilkins wrote that the petitioners challenging the Clean Power Plan and EPA had “hijacked” the court’s equitable powers for the purposes of maintaining the status quo while EPA decides the disposition of the Clean Power Plan. Judge Wilkins, joined by Judge Millett, said that if EPA or the petitioners wished to further delay operation of the Clean Power Plan, “then they should avail themselves of whatever authority Congress gave them to do so, rather than availing themselves of the Court’s authority under the guise of preserving jurisdiction over moribund petitions.” Judge Tatel, also joined by Judge Millett, wrote that “the untenable status quo derives in large part from petitioners’ and EPA’s treatment of the Supreme Court’s order staying implementation of the Clean Power Plan pending judicial resolution of petitioners’ legal challenges as indefinite license for EPA to delay compliance with its obligation under the Clean Air Act to regulate greenhouse gases.” Judge Tatel suggested that the parties had an obligation to advise the Supreme Court of the “circumstances as they stand today” so that the Court may “decide for itself whether the temporary stay it granted pending judicial assessment of the Clean Power Plan ought to continue now that it is being used to maintain the status quo pending agency action.”

Challenge to EPA's final Clean Power Plan rule.

West Virginia v. EPA

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D.C. Circuit Continued Abeyance for Long-Pending Challenges to Clean Power Plan, But Three Judges Expressed Concerns About Prolonged Delay

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United States of America

District of Columbia

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D.C. Circuit Continued Abeyance for Long-Pending Challenges to Clean Power Plan, But Three Judges Expressed Concerns About Prolonged Delay

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Greenhouse gas

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