Coal, Energy Litigation, Energy Policy, EPA

Update: Latest Challenge of Final Clean Power Plan Rejected by D.C. Circuit

SONY DSCOn September 9, 2015, the D.C. Circuit Court of Appeals issued a Per Curiam Order resolving the question probed in our post, EPA Back in Court Over Clean Power Plan, Is this Challenge of the Final Rule Premature As Well?.  Following the U.S. Environmental Protection Agency’s (“EPA”) announcement of the final Clean Power Plan in August, several States filed an emergency motion and petition for extraordinary writ of mandamus before the D.C. Circuit Court of Appeals seeking a stay of all deadlines set forth in the Final CPP, including the September 6, 2016 and September 6, 2018 deadlines set for submission of State Plans.  Peabody Energy Corporation also renewed its previous writ challenging the statutory authority of the EPA to regulate CO2 emissions from existing power plants, urging the court to consider the substantive issue prior to publication of the Final CPP in the Federal Register given the firm deadlines set by the final rule.  The matters were consolidated for consideration by the court and briefing was completed on September 4.  You can read our previous post for details regarding the arguments raised by the parties.  In short order, the D.C. Circuit again put a hold on challenges to the Clean Power Plan:

Upon consideration of the emergency petition for extraordinary writ filed by West Virginia, et al., in No. 15-1277; the emergency renewed petition for extraordinary writ filed by Peabody Energy Corporation in No. 15-1284; the responses thereto; and the replies, it is

ORDERED that the petitions be denied because petitioners have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action. See Reynolds Metals Co. v. FERC, 777 F.2d 760, 762-63 (D.C. Cir. 1985); Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).

Pursuant to D.C. Circuit Rule 36, this disposition will not be published.

Pursuant to the Clean Air Act, those opposing the plan may seek judicial review of the final rule “within 60 days from the date notice of such promulgation, approval, or action appears in the Federal Register” 42 U.S.C. § 7607(b)(1).  The EPA stated during briefing on these petitions that it expects the rule to be published in the Federal Register by the end of October, although there are no guarantees.



Brian Heslin

About Brian Heslin

Brian Heslin represents energy companies in regulatory proceedings at the state and federal level. In addition, he provides advice on busines and strategic planning, upstream natural gas supply and capacity negotiation, compliance and other related services.


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