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Lawsuits Seeking Stay of Clean Power Plan Consolidated; Tenth Circuit Denies Oklahoma Stay Request
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In a court order signed August 24, the U.S. Court of Appeals for the District of Columbia Circuit consolidated the two most recent challenges seeking an immediate stay of EPA’s Clean Power Plan (CPP) and ordered the agency to respond by August 31 to the lawsuits.  On August 13, 15 states and Peabody Energy Corp filed separate petitions for an extraordinary writ to block implementation of the CPP. 

 

In its petition, Peabody, the largest private-sector coal company in the world, hoped to get its latest challenge before the same panel that previously rejected challenges to the CPP as premature because the regulation had not been finalized.  The court declined that option and instead decided to create a new docket for the Peabody challenge.  The judges then consolidated that new case with the existing lawsuit from 15 states, led by West Virginia. 

 

Peabody and the 15 states argue that the D.C. Circuit should step in now, because “irreparable harm” is already occurring to the power sector in each state.  They have also argued that the final rule violates the Clean Air Act because the statute bar it from regulating carbon dioxide emissions from power plants under Section 111(d) when those units are already subject to hazardous air pollutant limits under Section 112.

 

Separately in an August 24 court order, the Tenth Circuit denied a request from the state of Oklahoma to immediately stay the CPP until legal challenges can be resolved.  The Tenth Circuit said Oklahoma has not shown that it is likely to win its lawsuit or that it would be irreparably harmed by implementing the CPP, the criteria for granting the stay.  Oklahoma appealed after its challenge to the CPP was dismissed by the U.S. District Court for the Northern District of Oklahoma for lack of jurisdiction.  Oklahoma has also joined 15 other states in asking the EPA to administratively stay implementation of the rule while it faces legal challenges, and Texas recently filed its own separate petition asking EPA to stay the rule.

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