Thursday, January 28, 2016

The Clean Power Plan Remains on Track as the Legal Battle Rages

by Sue Cowell, in Washington



The latest attempt to stop the implementation of the Clean Power Plan has moved to the US Supreme Court. After the DC Circuit Court denial of immediate relief,  twenty-nine states and state agencies, the US Chamber of Commerce along with other business associations, coal industry stakeholders and a number of utilities filed petitions with the US Supreme Court now urging them to stay the Clean Power Plan. 


They argue that the Clean Power Plan will be held unlawful, and that they will suffer irreparable harm if an immediate stay is not granted. The states and state agencies are concerned about spending a lot of time and resources developing implementation plans to satisfy obligations under the Clean Power Plan before the court can rule on the merits of the case.  Even though implementation plans or requests for extensions to submit the plans are not due before September 6, 2016, as a practical matter, states must start working well before that date. Since the states and state agencies believe that the Clean Power Plan will be deemed unlawful, they are worried that the time and money spent on any planning will be a waste.  US Supreme Court Chief Justice Roberts asked the EPA to respond to the petition by the states and state agencies by 3:00 p.m. next Thursday.


A party seeking such a stay has to establish that it is likely to succeed on the merits of the case, likely to suffer irreparable harm in the absence of a stay, that the balance of equities favors the party, and that the stay is in the public interest. The court's order denying the stay noted that these stringent requirements had not been met.

Although the DC Circuit Court denied the requests for an immediate stay, the court issued the following expedited schedule for briefing and oral arguments:

April 15, 2016           All initial briefs to be filed.

April 22, 2016           All final briefs to be filed.

June 2, 2016            Oral argument scheduled starting at 9:30 a.m.

States are required to submit implementation plans to EPA by September 6, 2016, describing how they will achieve their obligations under the Clean Power Plan, or request extensions to submit such plans. Final state implementation plans must be submitted to EPA by September 6, 2018. EPA will implement a federal plan for those states that do not submit their own plans, or fail to get EPA approval of their plans.

Although the US Court of Appeals for the DC Circuit could issue a decision on the full merits of the litigation by September 6, 2016, any decision from the court will almost certainly be appealed to the US Supreme Court. As a result of the litigation schedule, states that want to develop their own implementation plans really can't wait until a final court decision on the merits is issued to begin working in earnest. This timing likely factored heavily into US Supreme Court Chief Justice Roberts' request for the EPA to respond to the petition by the states and state agencies.