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25 States, Industry Ask D.C. Circuit to Strike Down Clean Power Plan, Move to Stay Rule
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25 States, Industry Ask D.C. Circuit to Strike Down Clean Power Plan, Move to Stay Rule

On October 23, 2015, the day EPA’s Clean Power Plan final rule was published in the Federal Register, more than two dozen states and numerous industry groups filed petitions for review asking the U.S. Court of Appeals for the D.C. Circuit to overturn it. A coalition of 24 states led by West Virginia and Texas filed the first petition for review; Oklahoma filed a separate lawsuit. A 16-member coalition of business and industry groups led by the U.S. Chamber of Commerce also sued to overturn the rule, and additional petitions were reportedly filed by Murray Energy Corp., the American Coalition for Clean Coal Electricity and the International Brotherhood of Boilermakers.

The 24-state coalition and 16-member industry coalition also filed motions asking the court to stay the rule; the states additionally asked that the court expedite consideration of their petition. In reviewing the stay motions, the D.C. Circuit will consider the movants’ likelihood of success on the merits, the prospect of irreparable injury if a stay is withheld, the possibility of substantial harm to others if a stay is granted, and the public interest.

The states and industry groups argue in their motions that all four factors weigh heavily in their favor. They assert that they are likely to prevail on the merits because Clean Air Act Section 111(d) does not authorize EPA to restructure the electrical grid; rather, EPA is permitted only to impose emissions reductions that can be achieved at the actual electric generating units subject to regulation. They also argue that regulation of electric generating units under Section 111(d) is foreclosed by the plain text of the statute because the source category is already regulated under Section 112. With respect to irreparable harm, the states argue that the final rule will require “massive and immediate efforts by State energy and environmental regulators, imposing irreparable financial harms upon the States.” The motion is accompanied by declarations of regulators providing examples of their responsibilities under the rule. The states argue that the balance of harms and public interest favor a stay because the rule will impose massive, immediate “ripple effects” throughout the energy economy, and no harm will occur from a delay in the implementation of the Clean Power Plan. The industry coalition argues that its members will suffer immediate harm because the rule will force the retirement of at least 10,793-11,430 MW of coal-fired electric generation in 2016, with corresponding harm to businesses supplying coal and support services to coal-fired plants, and to local economies due to losses in tax revenues.

The 24 states that joined the coalition lawsuit opposing the rule are West Virginia, Texas, Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, South Carolina, South Dakota, Utah, Wisconsin and Wyoming. The 16- member industry coalition opposing the rule incudes the Chamber of Commerce of the United States of America, National Association of Manufacturers, American Fuel & Petrochemical Manufacturers, National Federation 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. The deadline by which any additional petitions for review must be filed is December 22, 2015.
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