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Speaker 1: During an unprecedented session last September, the d C Circuit

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Speaker 1: Court of Appeals, sitting on bank with ten judges, heard

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Speaker 1: seven hours of arguments on a challenge by twenty six

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Speaker 1: Republican led states to the Obama Administration's Clean Power Plan.

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Speaker 1: The court has not made a decision because it granted

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Speaker 1: the administration's request to put the case on whole while

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Speaker 1: the e p A reviews the plan well. Last week,

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Speaker 1: the e p A announced a measure to repeal the

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Speaker 1: Clean Power Plan, and in an effort to rescue it,

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Speaker 1: more than twenty states and cities are urging the d

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Speaker 1: C Circuit to make that long deferred decision on whether

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Speaker 1: the initiative is legal, joining us as Patrick Parento, professor

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Speaker 1: of environmental law at Vermont Law School, pat, what's at

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Speaker 1: stake here? Well, Um, what's at stake is whether or

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Speaker 1: not the Obama Administration's Clean Power Plan still has some

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Speaker 1: life left in it. Um. The DC Circuit, after, as

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Speaker 1: you said, heard arguments a hacking the Clean Power Plan

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Speaker 1: when the Trump administration took power, said we'll hold the

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Speaker 1: case in adeyance at the request of the Trump administration

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Speaker 1: to give Mr Pruett at e p A some time

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Speaker 1: to come up with a decision on whether it was

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Speaker 1: going to repeal the Obama Plan and whether it was

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Speaker 1: going to replace the Obama Plan, and what we've not

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Speaker 1: been told that Mr Pruitt is, Yes, he's going to

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Speaker 1: repeal the Obama Plan at some point, he's proposed to

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Speaker 1: do that, and he said, we're going to think about

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Speaker 1: whether we're going to replace it, but we're not going

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Speaker 1: to give you a timetable for when we're going to

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Speaker 1: even make a decision about that or whether we'll we

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Speaker 1: will even do that. So I think the d C

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Speaker 1: Circuit is now in the position of having to say,

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Speaker 1: we should just go ahead and decide this case. The

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Speaker 1: legal issues that we've already heard briefed and argued before

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Speaker 1: us are the very same ones that Mr Pruitt is

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Speaker 1: now relying on to repeal the Clean Power Plan, So

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Speaker 1: we might as well decide once and for all whether

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Speaker 1: or not those issues are valid. Well, could the administration

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Speaker 1: simply say, in response to this request, yeah, we'll keep

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Speaker 1: it in abeyance because we're actually about to put out

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Speaker 1: a repeal, uh now, so that we can get and

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Speaker 1: get the process done. Well, the abeyance was for them

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Speaker 1: to actually come forward with a new rule. That's that's

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Speaker 1: what the Court said in its original order. That's why

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Speaker 1: the Court ordered EPA to file periodic reports every sixty

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Speaker 1: days of making progress on that. Up until this point,

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Speaker 1: e as reports were saying we are preparing a new rule.

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Speaker 1: Now we're being told we don't have a new rule.

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Speaker 1: We have a repeal, but we don't have a new rule.

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Speaker 1: We don't have a timetable for a new rule, and

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Speaker 1: we don't even know if we ever will propose a

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Speaker 1: new rule. So this is a whole different ball game.

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Speaker 1: And it seems to me the d C Circuit is

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Speaker 1: going to see this for what it is, which is

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Speaker 1: a stalling tactic. This is a tactic by the Bushes

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Speaker 1: the Trump administration not to make a decision. Run out

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Speaker 1: the clock. This is what the coal industry wants. Of course,

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Speaker 1: they don't want any rule. So I I'm not sure

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Speaker 1: the d C Circuit is going to buy the argument

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Speaker 1: this time around. So Pat, if the d C Circuit

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Speaker 1: upholds the rule as legal, does it then become law

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Speaker 1: if it upholds the Clean Power Plan, Well, now it's

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Speaker 1: complicated because, of course Prude is proposing to repeal it.

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Speaker 1: So actually what the court is going to have to

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Speaker 1: decide is whether or not the grounds on which Pruett

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Speaker 1: proposes to repeal the rule are valid, or whether the

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Speaker 1: grounds on which the Obama Plan was predicated are valid.

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Speaker 1: So the case has changed in its posture, but the

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Speaker 1: basic question is still the same. What is the best

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Speaker 1: system of emission reduction for carbon pollution from power plants?

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Speaker 1: Is that the Obama approach or is it the prut approach, which,

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Speaker 1: of course we don't know exactly what the Prude approach

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Speaker 1: is going to be. Well, but when this case was

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Speaker 1: first argued that the issue is simply whether the Clean

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Speaker 1: Power Plan was legal? Right, So how how does it

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Speaker 1: change now to take into account what the Trump administration

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Speaker 1: says it might do. Well, Now pru It is saying

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Speaker 1: it isn't legal for the same reasons that Pruett alleged

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Speaker 1: or argued in the brief he filed when he was

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Speaker 1: at Oklahoma Attorney General. So the question for the court

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Speaker 1: is who's which interpretation of the term best system of

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Speaker 1: emission reduction is the appropriate interpretation of the statute. And

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Speaker 1: so this is going to come down to a question

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Speaker 1: of deference. And we know that at least Justice Courses

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Speaker 1: most recently has once again expressed grade reservations about how

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Speaker 1: much difference to give agencies interpretation of statutes. Now we

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Speaker 1: have a brand new interpretation by Mr Pruett and an

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Speaker 1: older interpretation by Obama which was based on some earlier

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Speaker 1: interpretations by previous administration. So we have a long history

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Speaker 1: now of interpreting these terms in the statute, and the

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Speaker 1: Court is going to have to decide which interpretation is

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Speaker 1: the most reasonable interpretation of what Congress intended about a

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Speaker 1: minute of your pat It's an odd situation because the

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Speaker 1: E p A argued for the legality of the Clean

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Speaker 1: Power Plan a year ago, and now it's on the

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Speaker 1: opposite side under the leadership of Pruett, who has Oklahoma

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Speaker 1: Attorney General help lead the challenge to the rule. There

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Speaker 1: is no apparent conflict, but it seems like there should be. Well,

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Speaker 1: it comes down to what's the reasoned explanation for prue.

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Speaker 1: It's new interpretation and of course the one he favored

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Speaker 1: as Attorney general. Um. And it is true that there

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Speaker 1: is room for interpretation. These terms are ambiguous enough to

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Speaker 1: allow for some interpretation, But the question comes down to

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Speaker 1: is your interpretation consistent with the text, the context, and

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Speaker 1: the purpose of the statute, and if it is not

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Speaker 1: consistent with those factors, then it doesn't deserve Chevron deference.

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Speaker 1: And I'm betting that the C Circuit is not inclined

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Speaker 1: to give Pruit a lot of difference when he has

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Speaker 1: not come forward with an actual rule based on what

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Speaker 1: he thinks this statutory term means. Alright, Pat Parento, always

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Speaker 1: a pleasure to have you on. He's a professor of

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Speaker 1: environmental law at Vermont Law School.