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EPA Expects to Publish Clean Power Plan in October
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On August 31, EPA told the U.S. Court of Appeals for the District of Columbia Circuit that it expects the Clean Power Plan (CPP) will be published in the Federal Register by “late October,” and that early challenges to the CPP should be rejected since the states seeking to block the rule cannot show they will be harmed by waiting for the rule to be published, which typically opens the window for litigation.  EPA also argued the court lacks the authority under the All Writs Act to block implementation of the CPP until the rule is formally published.


Fifteen states, led by West Virginia, have asked the court to issue an extraordinary writ under the All Writs Act to block implementation of the CPP, arguing the rule is illegal on its face. Those challenges have been consolidated with a similar lawsuit brought by Peabody Energy Corp. that also seeks to block the rule before it is published in the Federal Register.  EPA said the states are seeking the same action the D.C. Circuit has already rejected as premature. The court previously denied states and industry groups' petition to block the CPP as premature, because the final rule had not yet been issued by the EPA.

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