Monday, October 26, 2015

Clean Power Plan – 19 Separate Petitions for Review Already Filed

by Sue Cowell, in Washington

As expected, publication of the Clean Power Plan in the Federal Register on Friday started a firestorm of litigation. A total of 19 petitions for review of the Clean Power Plan were filed by 26 states and a number of other interested parties. Friday marked the first day of the 60-day period to file petitions for review by the US Court of Appeals for the DC Circuit. Here's the list of petitions that were filed on Friday along with the assigned case numbers:

  • States. Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming. All of these states joined in the lawsuit brought by West Virginia and Texas (No. 15-1363). The states of North Dakota (No. 15-1380) and Oklahoma (No. 15-1364) each filed separate lawsuits.
  • Others. Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company (all wholly-owned subsidiaries of Southern Company) (No. 15-1371); American Coalition for Clean Coal Electricity (No. 15-1368); Association of American Railroads (No. 15-1383); Chamber of Commerce of the United States, National Association of Manufacturers, American Fuel & Petrochemical Manufacturers, National Federal of Independent Business, American Chemistry Council, American Coke and Coal Chemicals Institute, American Foundry Society, American Forest & Paper Association, American Iron & Steel Institute, American Wood Council, Brick Industry Association, Electricity Consumers Resource Council, Lignite Energy Council, National Lime Association, National Oilseed Processors Association, and Portland Cement Association (No. 15-1382); CO2 Task Force of the Florida Electric Power Coordinating Group, Inc. (No. 15-1372); International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO (No. 15-1365); Montana-Dakota Utilities Company, a Division of MDU Resources Group, Inc. (No. 15-1373); Murray Energy Corporation (No. 15-1366); National Association of Homebuilders (No. 15-1379); National Mining Association (No. 15-1367); National Rural Electric Cooperative Association and 36 of its member rural electric cooperatives (No. 15-1376); NorthWestern Corporation (d/b/a NorthWestern Energy) (No. 15-1378); Tri-State Generation & Transmission Association, Inc. (No. 15-1374); United Mine Workers of America (No. 15-1375); Utility Air Regulatory Group and American Public Power Association (No. 15-1370); and Westar Energy, Inc. (No. 15-1377).

A number of these parties also filed a motion on Friday for a stay of the Clean Power Plan (Nos. 15-1370, 15-1371, 15-1372, 15-1365, 15-1373, 15-1376, 15-1378, 15-1374, 15-1375, and 15-1377). In the motion, these parties assert that EPA exceeded its authority under Section 111(d) of the Clean Air Act, and that the Clean Power Plan violates the 10th Amendment of the US Constitution. According to the motion, the merits of these legal arguments will be developed during the briefing of the motion. In deciding whether or not to grant a stay, the court will examine whether the parties requesting the stay will prevail on the legal merits of their arguments, the likelihood of irreparable harm in the absence of a stay, the possibility of substantial harm to others if a stay is granted, and the public interest. No word yet on when the court may rule on the request.