Clean Power Plan litigation: States seek stay and Republican-appointed judges

West Virginia and fourteen other states filed a pair of petitions at the Court of Appeals for the D.C. Circuit on August 13th, connected to their challenge of the recently announced Clean Power Plan (In re West Virginia, et al., No. 15-1277). (If you need a refresher on the 1,560-page rule that regulates CO2 emissions from fossil fuel-fired power plants, see this primer I recently wrote.) In the first filing, an Emergency Petition for Extraordinary Writ, the petitioners ask the court to impose an emergency stay, which would absolve states of the requirement to comply with the rule until the court case is resolved. In the second, an Emergency Motion to Consolidate and for Expedited Treatment, the petitioning states request the court to combine their latest challenge with three cases that were initiated after the Clean Power Plan was first proposed in 2014 (In re Murray Energy Corp., No. 14-1112; Murray Energy Corp. v. EPA, No. 14-1151; and West Virginia, et al. v. EPA, No. 14-1146). While the fact that many states that rely heavily on coal-fired power plants are challenging the rule is hardly surprising, the petitions are novel in several respects.

In the Emergency Petition for Extraordinary Writ, the states argue that the Clean Power Plan “requires States to spend significant and irrecoverable sovereign resources now to begin preparing their State Plans” in order to comply with a rule that that they believe is unlawful (Petition, at *2.) As expected, the states reiterate the claims made in In re Murray Energy Corp., namely (1) that the regulation of fossil fuel-fired power plants under § 112 of the Clean Air Act precludes regulation of such plants under § 111(d) and (2) that the final rule’s reliance on so-called ‘beyond the fence line’ factors, which go beyond adaptations to the fossil fuel-fired plants themselves, are impermissible. (Petition, at *16–24.) Interestingly, though, by seeking an extraordinary writ the parties are refusing to go the normal route and wait until the EPA rule is published in the Federal Register before bringing suit. As per statutory procedures, a party wishing to challenge a Clear Air Act regulation has 60 days from the date of publication in the Federal Register. While the final version of the Clean Power Plan was announced and made public on August 3rd, it has yet to be published in the Federal Register. The petitioning states argue that it could be months before the final rule is published in the Federal Register, which would give them precious little time to prepare state plans in order to meet the September 2016 deadline to do so. Even with the availability of a two-year extension, the states argue that the “EPA’s schedule will be difficult to meet.” (Petition, at *8.)

With that in mind, the states are relying on the All Writs Act, which dates back to the Judiciary Act of 1789, and seek a stay of all of the rule’s deadlines, including the plan submission deadlines. (Petition, at *4.) Requests under the All Writs Act are decided according to the three-pronged “Cheney” test: (1) Is there no adequate alternative to prevent irreparable harm? (2) Are the petitioners clearly and indisputably entitled to relief? (3) In the exercise of the court’s discretion, is the writ appropriate under the circumstances? If the court answers all of those in the affirmative, court may grant the writ ordering the stay requested. The states are, of course, convinced that all of the Cheney factors are satisfied in the instance case. However, by offering all states a two-year extension to the plan submission deadline (until September 2018) as well as having pushed back the first interim compliance date to 2022, the EPA has a decent argument against the states’ claim of impending “irreparable harm”. Additionally, and as discussed in my primer on the Clean Power Plan, it is far from certain that the states will succeed on their claims that the EPA rule was an unlawful exercise of its authority. Therefore, I expect the Court of Appeals for the D.C. Circuit to deny the states’ Emergency Petition for Extraordinary Writ.

As regards the second petition, the Emergency Motion to Consolidate and for Expedited Treatment, what is interesting is the states’ apparent strategy to attempt to get the same Republican-appointed D.C. Circuit judges that handled the trio of cases mentioned in the first paragraph of this post. While the states present their request for consolidation in the common-sense language of efficacy (“considerations of judicial efficiency militate strongly against requiring a new panel to become familiar with these arguments”), E&E News’s Jeremy P. Jacobs pointed out in an excellent article that one of the judges in the previous cases has a history of ruling against the EPA and another judge, in her concurring opinion in In re Murray Corp., seemed open to staying compliance requirements until litigation is resolved. It should be noted that the previous three-judge panel only ruled on procedural grounds and never discussed the merits of the case. Therefore, it is questionable just how much time and effort they spent on the underlying facts of the dispute. Ultimately, a separate panel of judges will likely decide whether the cases will be consolidated. If they are consolidated, though, the states will have won one of the first battles in the coming (probably years of) litigation.

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