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Double Dose of Good News from D.C. Circuit Court

In a double dose of good news, the D.C. Circuit Court this week put on hold litigation surrounding two major Obama-era Environmental Protection Agency rules for existing power plants.

On Thursday, a three-judge panel on the D.C. Circuit granted the EPA’s request to pause litigation over the Mercury and Air Toxics Standards, also known as the Utility MACT. As I’ve reported before, this rule would cost $10 billion annually, yet its bizarre purpose is to protect a supposed population of pregnant subsistence fisherwomen who eat hundreds of pounds of self-caught fish during their pregnancies, despite all the signs along rivers and lakes advising them not to. Notably, EPA never identified a single member of this putative population. Rather, they were modeled to exist.

In 2015, the Supreme Court ruled that the agency impermissibly failed to take costs and benefits into account when it promulgated the Utility MACT in 2012. The obvious reason the agency failed to take costs and benefits into account is that it didn’t want to draw attention to the absurdity of its rule. According to the agency, the value of the aforementioned benefits to pregnant fisherwomen is $1 million to $6 million annually, as against compliance costs of $10 billion.

As a result of the Supreme Court’s 2015 holding, the Utility MACT was sent back to the agency to consider costs. During the final year of the Obama administration, the agency took costs into account by accounting for the rule’s “co-benefits”—that is, the agency evaluated the benefits of how the rule affects emissions of pollutants that were not subject to the rule. Of course, this is a sleight of hand—these pollutants have nothing to do with the Utility MACT and are in fact regulated stringently under a different part of the Clean Air Act. (For an extended discussion of the duplicity of “co-benefits,” see this post by my colleague Marlo Lewis).

Many states and power plants challenged in federal court the Obama administration’s use of “co-benefits” to justify the Utility MACT; this was the litigation that was paused on Thursday. As a matter of policy, the court’s order will allow the Trump administration to create a record that definitively refutes and disavows the disingenuous use of co-benefits.

The second dose of good news occurred yesterday, when an en banc panel of the D.C. Circuit Court granted the Trump administration’s request to pause litigation over the “Clean Power” Plan. The concern here was that the Court, which is packed with Obama appointees, would have approved the legality of the Clean Power Plan before the Trump administration can revise or rescind it. Such a holding would not have hamstrung the Trump administration’s authority to revise or rescind the rule, but it would have been bad public relations that the greens would crow about.

Neither order was unexpected. Presidential changeovers commonly entail transitions in policy priorities, and courts recognize that popularly elected Presidents should have the opportunity to craft their own policy agendas distinct from that of their predecessors. Accordingly, courts are loathe to render a ruling on the legality of a given rule that the sitting administration is in the process of revising or rescinding, as is the case with both the Utility MACT and Clean Power Plan.