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Consolidation Denied in Clean Power Plan Lawsuits
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On August 19, the U.S. Court of Appeals for the District of Columbia Circuit denied an emergency motion from 15 states seeking to consolidate their legal challenge to EPA’s Clean Power Plan with other pending appeals.  The 15 states led by West Virginia will still be able to pursue their lawsuit seeking a stay to block implementation of the CPP despite the per curiam order denying the consolidation request.  The states had filed a lawsuit August 13 asking the D.C. Circuit to issue an extraordinary writ to halt implementation of the Clean Power Plan even before the rule was published in the Federal Register because the rule imposes an immediate requirement on state regulators to begin work on a compliance plan.  The stay is being sought by Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, West Virginia, Wisconsin and Wyoming.

 

The states argued that they were raising many of the same arguments previously heard by the same D.C. Circuit panel addressing the reconsideration requests and that Judges Karen LeCraft Henderson, Brett Kavanaugh and Thomas Griffith were already familiar with the material.  The three judges had dismissed prior challenges to the Clean Power Plan because the rule wasn't yet final. Many of the same states seeking the stay have also asked the same panel, which is viewed as skeptical of the EPA's authority, to rehear those lawsuits now that the final rule has been issued.
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