Emergency Stay of EPA’s Clean Power Plan Denied by Federal Court

The U.S. Court of Appeals for the D.C. Circuit on Wednesday rejected a request by 15 U.S. states to stay the Environmental Protection Agency’s (EPA’s) Clean Power Plan.

In a one-page order, the three-judge panel dismissed the request filed on Aug. 13 by a coal company and the coalition of states led by West Virginia’s Attorney General Patrick Morrisey asking the court to issue an emergency stay to postpone deadlines imposed by the final rule. The states argued that the measure was critical while the courts determine the plan’s legality.

In its ruling, however, the court said the petitioners had not satisfied “the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action.”

States that requested the emergency stay include: Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, West Virginia, Wisconsin, and Wyoming.

When they filed the petition with the D.C. Circuit, the states noted that a stay of a federal rule would not be sought until the lawsuit challenging it is filed, which would usually occur once the rule is published in the Federal Register.

But the “EPA has made the unusual choice to make the states’ obligations effective immediately,” Morrisey’s office said in a press release on Aug. 13. “Regardless of the date of formal publication, the states already have firm deadlines to submit initial and final compliance plans under the rule. Because it could be months before the 1,560-page rule is published, the Attorneys General believe court precedent makes clear that a request for a stay at this time is appropriate in order to prevent states from having to expend significant taxpayer resources to begin complying with the rule.”

The EPA told POWER on Sept. 10 that it expects the final Clean Power Plan rule to be published in the Federal Register by no later than “middle- to late-October.”

A spokesperson said the agency is pleased with the court’s decision. “EPA maintains that the Clean Power Plan is based on a sound legal and technical foundation, and it was shaped by extensive input from states, industry, energy regulators, health and environmental groups, and individual members of the public,” she said. She added, “To ensure that the Clean Power Plan’s significant health benefits and progress against climate change are delivered to all Americans, EPA and the Department of Justice will vigorously defend it in court.”

Under the final rule issued on Aug. 3, state plans that will show how they will meet emission goals are due in September 2016, but states that need more time can make an initial submission and request extensions of up to two years for final plan submission. The compliance-averaging period in the final rule begins in 2022 instead of 2020, and emission reductions are phased in on a gradual ‘glide path’ to 2030.

This June, the D.C. Circuit rejected similar challenges to the EPA’s proposed carbon rules for existing power plants, ruling that it does not have the authority to review rules that aren’t yet final. “Petitioners are champing at the bit to challenge EPA’s anticipated rule restricting carbon dioxide emissions from existing power plants. But EPA has not yet issued a final rule. It has issued only a proposed rule,” wrote Circuit Judge Brett Kavanaugh in the court’s opinion.

Experts are certain that the final rule will be challenged in court, and the outcome is uncertain. At a March 17 Congressional hearing, witnesses testified that states and power companies would still have to expend enormous resources developing and complying with state plans.

Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)