15 U.S. States Seek Emergency Stay of Clean Power Plan [US]

On August 13th, 2015, fifteen state Attorneys General filed a lawsuit against the U.S. Environmental Protection Agency (EPA)  challenging the Clean Power Plan (CPP) of August 3rd, 2015.

The EPA’s Clean Power Plan sets different target emission rates for each state with the goal of achieving a 32% reduction in carbon emissions from existing power plants by 2030 from levels recorded in 2005.

Fifteen states filed a petition in the U.S. Court of Appeals seeking an emergency stay of the CPP’s deadlines until the rule is published in the Federal Register.  The move came in the wake of the courts dismissing challenges to the CPP on June 9th, 2015, holding that they were premature as the EPA had not yet finalized the rule.  (In re: Murray Energy Corp., No. 14-1112; State of West Virginia v. EPA, No. 14-1146.)

The petitioners now argue that as the CPP may not end up being published for several months, they wish to postpone the Plan’s deadlines until the courts reach a decision regarding the pending legal challenges to the rule.

List of states that filed the petition:

• Alabama,
• Arkansas,
• Florida,
• Indiana,
• Kansas,
• Kentucky,
• Louisiana,
• Michigan,
• Nebraska,
• Ohio,
• Oklahoma,
• South Dakota,
• West Virginia,
• Wisconsin,
• Wyoming.

Under the CPP, states must submit their compliance plans by September 2016 or submit an initial submission and request an extension of up to two years to deliver their final plan. If states fail to submit even an initial draft, the Plan authorizes the EPA to impose a Federal Power Plant Regulation Plan. To challenge this, opponents must demonstrate “irreparable injury” in the time it takes for the court to decide the case.

The finalization of the CPP on August 3rd 2015 opened the door for legal challenges from industry stakeholders as well as states that rely heavily on coal-fired utilities. The petition is just one of more to come that challenge the CPP on the grounds that it imposes an undue burden on the states.

EHS Legalist Red-on-line

Sources:

Emergency Petition: In Re West Virginia, et al. (2015).  Sharon Montazeri, Obama Administration and U.S. EPA Announce Final Clean Power Plan for Existing Power Plants and NSPS for Greenhouse Gas Emissions from New or Modified Power Plants, Red-on-line USA, August 6, 2015. Final rule, fact sheets and details about the Clean Power Plan, the final standards for new, modified and reconstructed sources and the proposed federal plan are available at: Clean Power Plan Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, Prepublication Notice, August 3, 2015.  In re: Murray Energy Corporation (June 9, 2015) Clean Air Act