Description: Challenge to final rule repealing the Clean Power Plan and replacing it with the Affordable Clean Energy rule.
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West Virginia v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 06/30/2022 Opinion Download D.C. Circuit judgment reversed and cases remanded. Supreme Court Said Obama Administration Regulation of Power Plant Carbon Emissions Exceeded EPA’s Authority. In a 6-3 decision, the U.S. Supreme Court held that Section 111(d) of the Clean Air Act did not give the U.S. Environmental Protection Agency (EPA) the authority to use “generation-shifting” measures to set carbon dioxide emission limits for power plants. In doing so, the Court reversed the D.C. Circuit’s January 2021 decision that found that the Trump administration’s repeal and replacement of the Obama administration’s Clean Power Plan was based on a too-narrow construal of EPA’s authority under Section 111(d). The Clean Power Plan used generation-shifting measures as two of the three “building blocks” for the “best system of emission reduction” for power plants under Section 111(d). One Clean Power Plan building block shifted electricity production from coal-fired to natural gas-fired units, and another building block shifted generation to low- or zero-carbon sources such as wind and solar.
In the majority opinion by Chief Justice Roberts, the Court first determined that state petitioners, led by West Virginia, had standing because the D.C. Circuit’s judgment “purports to bring the Clean Power Plan back into legal effect,” which would require the states to “more stringently regulate power plant emissions within their borders.” The Court said the government’s arguments on standing—i.e., that EPA did not intend to enforce the Clean Power Plan but instead to develop a new Section 111(d) rule and that the D.C. Circuit had stayed the portion of its judgment that vacated the Clean Power Plan’s repeal—implicated mootness, not standing. The Court further concluded that EPA’s “voluntary cessation” of enforcement of the Clean Power Plan did not meet the heavy burden of establishing that the case was moot.
On the merits, the Court determined that this was “a major questions case” under Court precedents dictating that “in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there.” In such cases, the Court wrote, there must be “something more than a merely plausible textual basis for the agency action,” and so an agency “must point to ‘clear congressional authorization’ for the power it claims.” The Court identified factors that made this case a major questions case: EPA argued that Section 111(d) “empowers it to substantially restructure the American energy market” based on “an unheralded power” discovered “in a long-extant statute”; this asserted power was found in the “vague” language of an “ancillary” provision of the statute (i.e., Section 111(d), which the Court also referred to as a “previously little-used backwater”); and EPA’s interpretation “allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself.” The Court said that prior to the Clean Power Plan, EPA had always set Section 111 emission limits based on measures that would cause the regulated source to operate more cleanly, and that the Clean Power Plan’s generation-shifting plan therefore was “unprecedented” and “effected a ‘fundamental revision’” of the Clean Air Act’s regulatory scheme. Having found that its precedent “counsels skepticism toward EPA’s claim that Section 111 empowers it to devise carbon emissions caps based on a generation shifting approach,” the Court then determined that Section 111(d)’s “vague statutory grant” of authority to EPA to establish emission limits at a level reflecting “the application of the best system of emission reduction … adequately demonstrated” was “not close to the sort of clear authorization required by our precedents.” The Court also found that examples of other Clean Air Act provisions that describe cap-and-trade or sector-wide mechanisms for reducing pollution as systems did not support the argument that such a mechanism would be a “system of emission reduction” under Section 111(d). The Court noted, however, that it was not addressing whether “system of emission reduction” must exclusively refer “to measures that improve the pollution performance of individual sources” (sometimes referred to as inside-the-fenceline measures).
Justice Gorsuch wrote a concurring opinion, joined by Justice Alito, that offered “additional observations” on the major questions doctrine and when it applies. This concurrence spoke favorably of the nondelegation doctrine. Justice Kagan wrote the dissent, joined by Justices Breyer and Sotomayor. The dissent described the majority’s decision as “really an advisory opinion on the proper scope of the new [Section 111(d)] rule EPA is considering” since no party was currently subject to the Clean Power Plan’s terms. The dissent stated that “[t]he limits the majority now puts on EPA’s authority fly in the face of the statute Congress wrote,” which in the dissent’s view “broadly authorized” EPA to set the “best system of emission reduction.” The dissent said that a “key reason” for Congress to make broad delegations like the one in Section 111(d) is so that “expert” agencies “can respond, appropriately and commensurately, to new and big problems.”02/28/2022 Transcript Download Oral argument held. 01/25/2022 Amicus Brief Download Brief filed by amici curiae American Thoracic Society et al. in support of respondents. 01/25/2022 Amicus Brief Download Brief filed by Apple Inc. and other companies in support respondents. 01/25/2022 Amicus Brief Download Brief filed by amici curiae Edison Electric Institute and National Association of Clean Water Agencies in support of respondents. 01/25/2022 Amicus Brief Download Brief filed by amici curiae former power industry executives in support of respondents. 01/25/2022 Amicus Brief Download Brief filed by amici curiae former commissioners of the Federal Energy Regulatory Commission in support of respondents. 01/25/2022 Amicus Brief Download Brief filed by amici curiae grid experts Benjamin F. Hobbs, Brendan Kirby, Kenneth J. Lutz, and James D. McCalley in support of respondents. 01/25/2022 Amicus Brief Download Brief filed by 192 members of Congress as amici curiae in support of respondents. 01/25/2022 Amicus Brief Download Brief filed by Julian Davis Mortenson as amicus curiae in support of respondents. 01/25/2022 Amicus Brief Download Brief filed by amici curiae the National League of Cities and the U.S. Conference of Mayors in support of respondents. 01/25/2022 Amicus Brief Download Brief filed by National Parks Conservation Association as amicus curiae in support of respondents. 01/25/2022 Amicus Brief Download Brief filed by amicus curiae Public Citizen in support of respondents. 01/25/2022 Amicus Brief Download Brief filed by amicus curiae Richard L. Revesz in support of federal, non-governmental organization and trade association, power company, and state and municipal respondents. 01/24/2022 Amicus Brief Download Brief filed by climate scientists Michael Oppenheimer et al. as amici curiae in support of respondents. 01/24/2022 Amicus Brief Download Brief of amicus curiae Thomas C. Jorling filed in support of respondents. 01/24/2022 Amicus Brief Download Brief filed by U.S. Senators Sheldon Whitehouse, Richard Blumenthal, Bernie Sanders, and Elizabeth Warren as amici curiae in support of respondents. 01/19/2022 Letter Download Letter filed by Virginia regarding reconsideration of position in the case. The State of Virginia submitted a letter to the Court to explain that it had not joined in the state and municipal respondents’ brief because following the change in administration in January 2022, the new attorney general had reconsidered Virginia’s position in the case and was “no longer of the view that EPA’s repeal of the [Clean Power Plan] was unlawful.” Virginia said it now supported the petitioners’ arguments. 01/18/2022 Brief Download Brief filed by the federal respondents. EPA argued that the petitioners lacked standing to invoke the Court’s jurisdiction because the D.C. Circuit’s vacatur of the ACE Rule “and the consequent absence of any currently application … regulation of greenhouse-gas emissions from existing power plants” did not harm petitioners. EPA contended that the petitioners sought an advisory opinion regarding what measures a future rule could contain. EPA further argued that the ACE Rule’s reading of the Clean Air Act was erroneous. In addition, EPA argued that there was no merit to the petitioners’ argument that the issue of determining what measures EPA may consider in determining the Best System of Emission Reduction (BSER) involved a major question and that “outside-the-fenceline” measures required specific congressional authorization. 01/18/2022 Brief Download Brief filed by non-governmental organization and trade association respondents. Non-governmental organization and trade association respondents argued that the cases were not justiciable because the petitioners did not establish standing since they were not subject to any obligations under the Clean Power Plan or other regulation, and also because any future regulation EPA might adopt could not be reviewed until after its final promulgation. In addition, they argued that the Clean Air Act did not contain the ACE Rule’s restriction on the BSER, and that reliance on major questions principles was “misplaced” and, moreover, would not change the outcome because the Court held in American Electric Power Co. v. Connecticut that Section 111 of the Clean Air Act “speaks directly” to power plant emissions of carbon dioxide and assigns EPA to decide whether and how to regulate them. They also argued that North Dakota’s arguments that EPA lacked authority to set binding emission guidelines were not properly before the Court and were meritless. 01/18/2022 Brief Download Brief filed by power company respondents. Power company respondents argued against the application of the major questions doctrine and also argued that the Clean Air Act did not limit EPA to considering only measures applied “at and to” an individual plant in determining the BSER. In addition, the power company respondents rebutted arguments that it was necessary to interpret Section 111 narrowly to avoid violation of the nondelegation doctrine. 01/18/2022 Brief Download Brief filed by State of New York and other state and municipal respondents. State and municipal respondents’ brief focused on the ACE Rule’s “overly restrictive reading” of the BSER and also argued that the case “does not resemble those in which this Court has found that an agency exceeded its core regulatory mission and decided major questions that Congress did not intend it to address.” They also contended that “without any extant rule that concretely affects petitioners,” concern regarding the EPA taking action that raised a major question outside its authority was “purely speculative.” 12/20/2021 Amicus Brief Download Brief filed by 91 members of Congress as amici curiae in support of petitioners. The 16 amicus briefs filed in support of the petitioners include a brief filed by 91 members of Congress, who argued that the major questions doctrine “forecloses the EPA’s far-reaching assertion of agency power” and that Congress “knows how to address greenhouse gas emissions,” citing laws that provide “carrots,” not “sticks,” to achieve emissions reductions and the recent federal law regulating hydrofluorocarbons. 12/20/2021 Amicus Brief Download Brief of amicus curiae America First Policy Institute filed in support of petitioners. 12/20/2021 Amicus Brief Download Brief filed by amicus curiae Americans for Prosperity Foundation in support of petitioners. 12/20/2021 Amicus Brief Download Brief filed by amicus curiae The Buckeye Institute in support of petitioners. 12/20/2021 Amicus Brief Download Brief filed by amicus curiae the Claremont Institute's Center for Constitutional Jurisprudence in support of petitioners. 12/20/2021 Amicus Brief Download Brief filed by amici curiae Doctors for Disaster Preparedness and Eagle Forum Education & Legal Defense Fund filed in support of petitioners. 12/20/2021 Amicus Brief Download Brief filed by amici curiae Michigan House of Representatives and Michigan Senate in support of petitioners. 12/20/2021 Amicus Brief Download Amicus curiae brief filed by New Civil Liberties Alliance in support of petitioners. 12/20/2021 Amicus Brief Download Brief of amicus curiae New England Legal Foundation filed in support of petitioners. 12/20/2021 Amicus Brief Download Brief filed by scholars of congressional accountability as amici curiae in support of neither party. 12/20/2021 Amicus Brief Download Brief filed by amici curiae Southeastern Legal Foundation and National Federation of Independent Business Small Business Legal Center in support of petitioners. 12/20/2021 Amicus Brief Download Brief filed by Kentucky, Arizona, Mississippi, and New Hampshire as amici curiae supporting petitioners. 12/17/2021 Amicus Brief Download Brief filed by amicus curiae Competitive Enterprise Institute in support of petitioners. 12/17/2021 Amicus Brief Download Brief of amici curiae South Texas Electric Cooperative, Inc. et al. filed in support of petitioners. 12/16/2021 Amicus Brief Download Brief of the Cato Institute and Mountain States Legal Foundation filed in support of petitioners. 12/16/2021 Amicus Brief Download Brief filed by amici curiae Lignite Energy Council et al. in support of petitioners. 12/16/2021 Amicus Brief Download Brief of amicus curiae Landmark Legal Foundation filed in support of petitioners. 12/13/2021 Brief Download Brief filed by respondent America's Power in support of petitioners. 12/13/2021 Brief Download Brief filed by respondent Basin Electric Power Cooperative in support of petitioners. 12/13/2021 Brief Download Brief filed by petitioner The North American Coal Corporation. Petitioner North American Coal Corporation argued that the D.C. Circuit’s interpretation of Section 111 ran afoul of the major questions doctrine because it “gives the EPA unfettered control over not only the nation’s power grid, but the entire economy,” where Congress had not “clearly conferred” such authority. North American Coal’s brief also argued that the test, structure, and history of the provision required an interpretation that required EPA standards to have a source-specific focus. 12/13/2021 Brief Download Brief filed by respondent National Mining Association in support of petitioners. 12/13/2021 Brief Download Brief filed by petitioner North Dakota. Petitioner North Dakota argued that the D.C. Circuit improperly interpreted Section 111 to give EPA “almost limitless power to regulate existing sources,” thereby upending the cooperative federalism framework and depriving states “of their authority to set standards of performance that take into account source-specific factors.” 12/13/2021 Brief Download Brief filed by state petitioners. Nineteen state petitioners led by West Virginia argued that Section 111 of the Clean Air Act does not clearly give EPA authority to exercise “transformative power” over the power industry and “to drive essential decisions” related to clean air and energy that traditionally are divided between the states and federal government. The states also argued that Section 111 requires that regulation be limited to “inside the fenceline” of a facility. They argued that the D.C. Circuit’s interpretation raised serious constitutional concerns and that the Court should construe Section 111 to avoid non-delegation issues. 12/13/2021 Brief Download Brief filed by petitioner Westmoreland Mining Holdings LLC. Petitioner Westmoreland Mining Holdings LLC argued that the Clean Power Plan “implicated major questions by every possible measure” and that it was not clearly authorized by Congress. Westmoreland further argued that “[a]ccepting the Clean Power Plan’s interpretation of EPA’s authority would result in a forbidden delegation of legislative power.” 10/29/2021 Order List Download Certiorari granted. Supreme Court Agreed to Hear Case Concerning EPA Authority to Regulate Carbon Emissions at Existing Power Plants. On October 29, 2021, the U.S. Supreme Court granted four petitions for writs of certiorari seeking review of the D.C. Circuit’s January 2021 decision vacating the U.S. Environmental Protection Agency’s (EPA’s) repeal and replacement of the Obama administration’s Clean Power Plan regulations for controlling carbon emissions from existing power plants. One petition was filed by West Virginia and 18 other states. Two coal companies each filed a petition, and North Dakota filed a separate petition. The questions presented in the four petitions and accepted for review by the Supreme Court are as follows:
• In 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, did Congress constitutionally authorize the Environmental Protection Agency to issue significant rules—including those capable of reshaping the nation's electricity grids and unilaterally decarbonizing virtually any sector of the economy—without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements? West Virginia v. EPA, No. 20-1530 (U.S.)
• Whether 42 U.S.C. § 7411(d), which authorizes the EPA to impose standards "for any existing source" based on limits "achievable through the application of the best system of emission reduction" that has been "adequately demonstrated," grants the EPA authority not only to impose standards based on technology and methods that can be applied at and achieved by that existing source, but also allows the agency to develop industry-wide systems like cap-and-trade regimes. North American Coal Corporation v. EPA, No. 20-1531 (U.S.)
• Whether 42 U.S.C. § 7411(d) clearly authorizes EPA to decide such matters of vast economic and political significance as whether and how to restructure the nation's energy system. (The Court did not grant certiorari on a second question presented in this petition.) Westmoreland Mining Holdings LLC v. EPA, No. 20-1778 (U.S.)
• Can EPA promulgate regulations for existing stationary sources that require States to apply binding nationwide "performance standards" at a generation-sector-wide level, instead of at the individual source level, and can those regulations deprive States of all implementation and decision making power in creating their Section 111(d) plans? North Dakota v. EPA, No. 20-1780 (U.S.)08/24/2021 Reply Download Reply brief filed by petitioners. Supreme Court to Consider Whether to Hear Appeals of D.C. Circuit Decision Vacating Trump Administration’s Repeal and Replacement of Clean Power Plan. Briefing was completed on August 24, 2021 on the four petitions for writ of certiorari seeking review of the D.C. Circuit’s January 2021 decision vacating the U.S. Environmental Protection Agency’s repeal and replacement of the Obama administration’s Clean Power Plan regulations for controlling carbon emissions from existing power plants. The petitions were distributed for the justices’ conference of September 27. 08/05/2021 Brief Download Brief in opposition filed by federal respondents. 08/05/2021 Brief Download Brief in opposition filed by nongovernmental organization and trade association respondents. 08/05/2021 Brief Download Brief in opposition filed by power company respondents. 08/05/2021 Brief Download Brief in opposition filed by states and municipalities. 06/03/2021 Amicus Brief Download Brief of amicus curiae Commonwealth of Kentucky filed in support of petitioners. Parties Filed Briefs Supporting Supreme Court Review of D.C. Circuit Decision on Affordable Clean Energy Rule. In late May and early June 2021, five responses and briefs were filed in support of certiorari petitions seeking review of the D.C. Circuit’s January opinion vacating EPA’s repeal and replacement of the Obama administration’s Clean Power Plan regulations for controlling carbon emissions from existing power plants. The D.C. Circuit held that the Trump administration’s Affordable Clean Energy Rule (ACE Rule) rested on an erroneous interpretation of the Clean Air Act that barred EPA from considering measures beyond those that apply at and to an individual source. Three of the responses and briefs supporting certiorari were filed by parties that intervened to defend the ACE Rule in the D.C. Circuit: National Mining Association; Basin Electric Power Cooperative, a not-for-profit regional wholesale electric generation and transmission cooperative; and America’s Power, a trade association comprising companies involved in the production of electricity from coal. In addition, two amicus briefs were filed, one by the Commonwealth of Kentucky and the other by New England Legal Foundation, a nonprofit law firm with a mission of “promoting balanced economic growth in New England and the nation, protecting the free-enterprise system, and defending individual economic rights and the rights of private property.” The federal government’s response is due by July 6. 06/03/2021 Response Download Response of America's Power filed in support of certiorari. 06/02/2021 Brief Download Brief filed by respondent Basin Electric Power Cooperative in support of the petition for writ of certiorari. 05/28/2021 Brief Download Brief filed by National Mining Association in support of the petition. 04/29/2021 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. States and Coal Company Sought Review of D.C. Circuit Decision Vacating Affordable Clean Energy Rule. Two petitions for writ of certiorari were filed in the U.S. Supreme Court seeking review of the D.C. Circuit’s January opinion vacating EPA’s repeal and replacement of the Obama administration’s Clean Power Plan regulations for controlling carbon emissions from existing power plants. The first petition was filed by West Virginia and 18 other states that had intervened to defend the repeal and replacement rule, known as the Affordable Clean Energy rule. The states’ petition presented the question of whether Section 111(d) of the Clean Air Act constitutionally authorizes EPA “to issue significant rules—including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy—without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements.” They argued that Congress had not clearly authorized EPA to exercise such “expansive” powers and that the D.C. Circuit majority opinion’s interpretation was foreclosed by the statute and violated separation of powers. The states argued that the Supreme Court’s stay of the Clean Power Plan while it was under review by the D.C. Circuit in 2016 signaled that the legal framework for the Clean Power Plan “hinges on important issues of federal that EPA then—and the court below now—got so wrong this Court was likely to grant review.” The states contended that further delay in the Court’s resolution of these “weighty issues” would have “serious and far-reaching costs.” The second petition was filed by a coal mining company. EPA’s response to the petitions is due June 3, 2021. -
North American Coal Corp. v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 08/24/2021 Reply Download Reply filed by petitioner. 06/03/2021 Amicus Brief Download Brief of amicus curiae New England Legal Foundation filed in support of petitioner. 04/30/2021 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. States and Coal Company Sought Review of D.C. Circuit Decision Vacating Affordable Clean Energy Rule. Two petitions for writ of certiorari were filed in the U.S. Supreme Court seeking review of the D.C. Circuit’s January opinion vacating EPA’s repeal and replacement of the Obama administration’s Clean Power Plan regulations for controlling carbon emissions from existing power plants. The first petition was filed by West Virginia and 18 other states that had intervened to defend the repeal and replacement rule, known as the Affordable Clean Energy rule. The second petition was filed by a coal mining company. The coal company’s petition presented the question of whether Section 111(d) “grants the EPA authority not only to impose standards based on technology and methods that can be applied at and achieved by that existing source, but also allows the agency to develop industry-wide systems like cap-and-trade regimes.” The company argued that the D.C. Circuit erred by “untethering” Section 111(d) standards from the existing source being regulated. Like the states, the company contended that Supreme Court had already recognized the critical importance of this question when it stayed the Clean Power Plan. The company argued that debates regarding climate change and policies to address climate change “will not be resolved anytime soon” but that “what must be resolved as soon as possible is who has the authority to decide those issues on an industry-wide scale—Congress or the EPA.” EPA’s response to the petitions is due June 3, 2021. -
Westmoreland Mining Holdings LLC v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 08/24/2021 Reply Download Reply brief filed by petitioner. 06/23/2021 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. A second coal mining company asked the Supreme Court to review the question of the scope of EPA’s regulatory authority under Section 111(d) of the Clean Air Act. The coal mining company also sought review of the question of EPA’s authority to regulate stationary sources such as power plants under Section 111(d) if hazardous pollutant emissions from such sources are already regulated under Section 112. -
North Dakota v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 08/24/2021 Reply Download Reply brief filed by petitioner. 06/23/2021 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. North Dakota asked the Supreme Court to review the question of the scope of EPA’s regulatory authority under Section 111(d) of the Clean Air Act. -
American Lung Association v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 04/18/2022 Status Report Download Status report filed by EPA stating that administrative proceedings to respond to the remand were ongoing. 01/17/2022 Status Report Download Status report filed by EPA stating that administrative proceedings to respond to the remand were ongoing. 09/01/2021 Status Report Download Status report filed by EPA. 03/05/2021 Not Available Download Partial mandate issued. 02/22/2021 Order Download Unopposed motion for partial stay of issuance of mandate granted. D.C. Circuit Granted EPA Request to Stay Issuance of Mandate Vacating Repeal of Clean Power Plan. On February 22, 2021, the D.C. Circuit Court of Appeals granted the U.S. Environmental Protection Agency’s (EPA’s) motion for a partial stay of the issuance of the mandate in the lawsuit challenging the Trump administration’s final rule repealing and replacing the Obama administration’s Clean Power Plan, which regulated greenhouse gas emissions from existing power plants under Section 111(d) of the Clean Air Act. On January 19, the D.C. Circuit vacated both the repeal and replacement components of the final rule, finding that the rule was based on an erroneous reading of the Clean Air Act. In its February 12 motion for partial stay of the mandate, EPA indicated that it “strongly” believed that no Section 111(d) rule should go into effect until EPA conducted new rulemaking in response to the January 19 decision. In its February 22 order, the court withheld issuance of the mandate with respect to the repeal of the Clean Power Plan and directed issuance of the mandate “in the normal course” for the vacatur of the replacement portion of the rule as well as timing provisions in the implementing regulations. EPA was directed to file status reports at 90-day intervals. 02/12/2021 Motion Download Motion filed by respondents for a partial stay of issuance of the mandate. 01/19/2021 Judgment Download Judgment entered vacating Affordable Clean Energy rule and remanding it to EPA, vacating amendments to the implementing regulations that extend the compliance timeline, denying Coal Petitioners' petitions for review, and dismissing Robinson Petitioners' petition for review for lack of standing. 01/19/2021 Opinion Download Per curiam opinion issued ordering that the Affordable Clean Energy rule and its repeal of the Clean Power Plan be vacated and remanded to EPA, and also vacating amendments to the implementing regulations that extended the compliance timeline, denying Coal Petitioners' petitions, and dismissing Robinson Petitioners' petition; opinion filed by Judge Walker concurring in part, concurring in the judgment in part, and dissenting in part. D.C. Circuit Vacated Trump EPA’s Affordable Clean Energy Rule. On January 19, 2021, the D.C. Circuit Court of Appeals ruled that the U.S. Environmental Protection Agency’s (EPA’s) Affordable Clean Energy Rule (ACE Rule) for greenhouse gas emissions from power plants rested on an erroneous interpretation of the Clean Air Act that barred EPA from considering measures beyond those that apply at and to an individual source. The court therefore vacated and remanded the ACE Rule—which repealed the 2015 Clean Power Plan rule and in its place adopted a replacement rule that relied only on heat-rate improvements at individual plants. In concluding that Section 111 of the Clean Air Act does not limit EPA to identifying a “best system of emission reduction” consisting only of controls “that can be applied at and to a stationary source,” the D.C. Circuit’s majority opinion first concluded that neither the text nor the statutory history, structure, and purpose compelled such a reading. Second, the D.C. Circuit ruled that EPA incorrectly invoked the “major questions doctrine”—which requires a clear statement from Congress when an agency’s regulatory action is of “extraordinary” significance—to support its interpretation of Section 111. The court found that Congress and the courts had long recognized EPA’s authority to regulate greenhouse gases from power plants under Section 111, and that the major questions doctrine did not apply to EPA’s identification of the “best system of emission reduction.” The court said Congress knew “both the scope and important of what it was doing” when it gave EPA authority to set standards and that it “cabined the EPA’s authority with concrete and judicially enforceable statutory limitations.” With respect to the significant regulatory consequences of the standards, the D.C. Circuit indicated that the consequences were “a product of the greenhouse gas problem, not of the best-system’s role in the solution,” writing that “any nationwide regulation of [power plants’] greenhouse gas pollution will necessarily affect a broad swath of the Nation’s electricity customers.” The court also rejected EPA’s contention that the major questions doctrine applied because the Clean Power Plan regulated the electric grid and not air pollution. Third, the D.C. Circuit held that the federalism canon—requiring that Congress use “exceedingly clear language” to alter the balance of power between the federal government and the states—did not support an interpretation limiting the best system of emission reduction to measures applied at and to the source. The D.C. Circuit also rejected two arguments by coal companies against the ACE Rule. First, the court found that EPA made and retained the requisite endangerment finding for regulation of carbon dioxide emissions from power plants. Second, the court found that EPA “correctly and consistently” interpreted the Clean Air Act to permit both regulation of a source’s hazardous air pollutant emissions under Section 112 and emissions of other pollutants under Section 111(d). The D.C. Circuit also concluded that two petitioners—Texas Public Policy Foundation and Competitive Enterprise Institute—lacked organizational standing to challenge EPA’s authority to promulgate the ACE Rule. Finally, the D.C. Circuit found that amendments to the regulations implementing Section 111(d)—which extended the timeline for compliance—lacked reasoned support. Because EPA’s sole defense for repeal of the Clean Power Plan and replacement with the Affordable Clean Energy Rule was that the interpretation underlying the rule was the only permissible one, the D.C. Circuit vacated the ACE Rule and remanded to EPA. Judge Walker issued a separate opinion dissenting from the majority’s conclusion that EPA had authority to regulate coal-fired power plants under both Section 111 and Section 112. Although he concluded that regulation of coal-fired power plants was foreclosed for this “more mundane reason” and thus concurred in the vacating of the ACE Rule, Judge Walker also wrote that he doubted the validity of the Clean Power Plan—which he characterized as “arguably one of the most consequential rules ever proposed by an administrative agency”—under the major questions doctrine. The court directed that issuance of the mandate be withheld until seven days after disposition of any petition for rehearing or petition for rehearing en banc. 01/19/2021 Order Download Issuance of the mandate withheld until seven days after the disposition of any petition for rehearing or petition for rehearing en banc. 10/08/2020 Not Available Oral arguments heard. D.C. Circuit Heard Oral Argument on Clean Power Plan Repeal and Replacement. On October 8, 2020, the D.C. Circuit Court of Appeals heard oral argument on the repeal of the Clean Power Plan, EPA’s authority to promulgate a replacement rule for carbon dioxide emissions from existing power plants, and the legality of EPA’s replacement rule, the Affordable Clean Energy Rule. The court also heard arguments on issues related to EPA’s treatment of biomass-based fuels and biogenic emissions. 09/25/2020 Order Download Order issued setting format for oral argument. 09/10/2020 Letter Download Letter filed by EPA in response to the Biogenic Petitioner's September 2, 2020 letter. 09/02/2020 Letter Download Letter filed by Biogenic CO2 Coalition regarding EPA promulgation of "Methane Rule." 08/28/2020 Letter Download Letter filed by Public Health and Environmental Respondent-Intervenors in response to Coal Industry Petitioners' August 17, 2020 letter. 08/25/2020 Letter Download Letter filed by EPA in response to Coal Industry Petitioners' August 17, 2020 letter. 08/17/2020 Letter Download Letter filed by Coal Industry Petitioners regarding EPA promulgation of "Methane Rule." 08/03/2020 Order Download Oral argument scheduled. D.C. Circuit to Hear Argument on October 8 on Repeal and Replacement of Clean Power Plan. Briefing was completed in the litigation challenging the U.S. Environmental Protection Agency's repeal of the Clean Power Plan and the promulgation of the Affordable Clean Energy Rule in its place. The D.C. Circuit scheduled oral argument for October 8, 2020. 07/30/2020 Notice Download Notice of support for other petitioners' reply briefs filed by the Clean Energy Associations. 07/30/2020 Reply Download Reply brief filed by petitioner Biogenic CO2 Coalition. 07/30/2020 Reply Download Reply brief filed by public health and environmental petitioners. 07/30/2020 Reply Download Reply brief filed by state and municipal petitioners and petitioner-intervenor State of Nevada. 07/28/2020 Reply Download Reply brief filed by petitioners Robinson Enterprises, Inc. et al. 07/16/2020 Brief Download Core legal issues brief filed by State of North Dakota. 07/16/2020 Brief Download Initial brief filed by public health and environmental respondent-intervenors. 07/16/2020 Brief Download Brief filed by state and municipal respondent-intervenors. 07/16/2020 Brief Download Brief filed by state and industry intervenors for respondent regarding Affordable Clean Energy Rule. 07/16/2020 Brief Download Brief filed by state and industry intervenors for respondent regarding Clean Power Plan repeal. 06/23/2020 Amicus Brief Download Brief filed by National Association of Home Builders as amicus curiae in support of respondents. The National Association of Home Builders filed a brief in support of EPA’s repeal of the Clean Power Plan, asserting that EPA “rightfully eliminates the Clean Power Plan’s overly expansive regulatory framework.” 06/16/2020 Brief Download Brief filed by respondents. EPA Defended Clean Power Plan Repeal and Replacement. On June 16, 2020, EPA filed its brief defending the repeal of the Obama administration’s Clean Power Plan and the promulgation of the Trump administration’s replacement rule, the Affordable Clean Energy (ACE) Rule. EPA argued that the Clean Power Plan was unlawful because Section 111(d) required that emissions reductions occur at a particular source and did not authorize the Clean Power Plan’s “generation shifting” measures. EPA also contended that it had properly defined a “Best System of Emissions Reduction” as an array of heat ray improvement methods and had properly identified the degree of emission limitations achievable. EPA also responded to arguments that it lacked authority to regulate carbon dioxide emissions at existing power plants; EPA argued that the ACE Rule was lawful based on EPA’s 2015 New Source Rule and did not require a new endangerment finding. In addition, EPA said regulation of hazardous air pollutant emissions under Section 112 did not bar regulation of carbon dioxide emissions under Section 111(d). EPA also argued that states could not adopt trading programs in place of source-specific emission standards and that the Clean Air Act did not permit compliance with the ACE Rule through biomass co-firing. 04/24/2020 Amicus Brief Download Brief filed by Union of Concerned Scientists and individual scientists and economists as amici curiae in support of petitioners. Individuals, companies, and organizations filed 18 amicus briefs in support of the Public Health and Environmental Petitioners, State and Municipal Petitioners, Clean Energy Associations, and Power Company Petitioners. The amicus parties included climate scientists, administrative law professors, members of Congress, the co-leader of the Interagency Working Group that developed the Social Cost of Carbon methodology, the principal staff drafter of the 1970 Clean Air Act Amendments, outdoor gear companies, a coalition of local governments and officials and municipal organizations, Service Employees International Union, medical groups, and faith organizations. 04/24/2020 Amicus Brief Download Brief filed by energy modelers as amici curiae in support of State and Municipal, Public Health and Environmental, Power Company, and Clean Energy Trade Association Petitioners. 04/24/2020 Amicus Brief Download Brief filed by amici curiae Environment America and National Trust for Historic Preservation in support of petitioners. 04/24/2020 Amicus Brief Download Brief filed by faith organizations as amici curiae in support of State and Municipal, Public Health and Environmental, Power Company, and Clean Energy Trade Association Petitioners. 04/24/2020 Amicus Brief Download Brief filed by former commissioners of the Federal Energy Regulatory Commission as amici curiae in support of State and Municipal, Public Health and Environmental, Power Company, and Clean Energy Trade Association Petitioners. 04/24/2020 Amicus Brief Download Brief filed by Professor Michael Greenstone, the co-leader of the Interagency Working Group that developed the Social Cost of Carbon methodology, as amicus curiae in support of State and Municipal, Public Health and Environmental, Power Company, and Clean Energy Trade Association Petitioners. 04/24/2020 Amicus Brief Download Brief filed by members of Congress as amici curiae in support of petitioners. 04/24/2020 Amicus Brief Download Brief filed by local governments and officials and municipal organizations as amici curiae in support of State and Municipal, Public Health and Environmental, Power Company, and Clean Energy Trade Association Petitioners. 04/24/2020 Amicus Brief Download Brief filed by two outdoor gear companies as amici curiae in support of State and Municipal, Public Health and Environmental, Power Company, and Clean Energy Trade Association Petitioners. 04/24/2020 Amicus Brief Download Brief filed by Service Employees International Union as amicus curiae in support of State and Municipal, Public Health and Environmental, Power Company, and Clean Energy Trade Association Petitioners. 04/24/2020 Amicus Brief Download Brief filed by five senators as amici curiae in support of State and Municipal, Public Health and Environmental, Power Company, and Clean Energy Trade Association Petitioners. 04/23/2020 Amicus Brief Download Brief filed by grid experts as amici curiae in support of State and Municipal, Public Health and Environmental, Power Company, and Clean Energy Trade Association Petitioners. 04/23/2020 Amicus Brief Download Brief filed by Institute for Policy Integrity at New York University School of Law as amicus curiae in support of State and Municipal, Public Health and Environmental, Power Company, and Clean Energy Trade Association Petitioners. 04/23/2020 Amicus Brief Download Brief filed by medical organizations as amici curiae in support of State and Municipal, Public Health and Environmental, Power Company, and Clean Energy Trade Association Petitioners. 04/22/2020 Amicus Brief Download Brief filed by administrative law professors as amici curiae in support of State and Municipal, Public Health and Environmental, Power Company, and Clean Energy Trade Association Petitioners. 04/22/2020 Amicus Brief Download Brief filed by amici curiae climate scientists in support of petitioners. 04/22/2020 Amicus Brief Download Amicus brief filed by Coalition to Protect America’s National Parks and National Parks Conservation Association in support of petitioners. 04/20/2020 Amicus Brief Download Brief filed by Thomas C. Jorling as amicus curiae in support of state and municipal, public health and environmental, power company, and clean energy trade association petitioners. 04/17/2020 Brief Download Initial brief filed by Biogenic CO2 Coalition. Petitioner Biogenic CO2 Coalition argued that the ACE Rule improperly prevented power plants from counting the co-firing of biomass as a compliance measure. 04/17/2020 Brief Download Opening brief filed by coal industry petitioners. Coal Industry Petitioners and another set of petitioners with members that included companies in the petroleum, trucking, forest products, and other industries, as well as individuals and nonprofit organizations, filed briefs arguing that EPA could not regulate carbon dioxide emissions from existing power plants under Section 111. 04/17/2020 Brief Download Initial opening brief filed by public health and environmental petitioners. 04/17/2020 Brief Download Brief filed by petitioners Robinson Enterprises, Inc. et al. 04/17/2020 Brief Download Opening brief filed by state and municipal petitioners. Petitioners in the lawsuits challenging the repeal of the Clean Power Plan and its replacement with the Affordable Clean Energy (ACE) Rule filed briefs in the D.C. Circuit. Arguments in the briefs filed by Public Health and Environmental Petitioners and State and Municipal Petitioners included that EPA had unreasonably determined that the “best system of emission reduction” for power plants could not include shifting generation to less-polluting plants; that the ACE Rule improperly repealed regulations for gas- and oil-fired plants without instituting new regulations; and that EPA unlawfully failed to establish a minimum degree of emission limitation to be incorporated in standards of performance. The initial briefs of Clean Energy Associations and Power Company Petitioners largely focused on arguments against EPA’s limitations on generation-shifting. 04/17/2020 Brief Download Opening brief filed by utility petitioners. 04/17/2020 Brief Download Opening brief filed by clean energy trade associations. 03/23/2020 Order Download Motion for extension and modification of briefing schedule granted. 03/19/2020 Motion Download Unopposed motion filed by coordinating petitioners for extension and modification of briefing schedule. 01/31/2020 Order Download Order issued setting briefing format and schedule. Briefing in Challenges to Regulations for Existing Power Plants to Be Complete by End of July. On February 3, 2020, the D.C. Circuit Court of Appeals set the briefing schedule for cases challenging EPA’s repeal of the Obama administration’s Clean Power Plan and the promulgation of the Affordable Clean Energy rule to regulate greenhouse gas emissions from existing coal-fired power plants. Petitioners’ opening briefs are due March 27, respondents’ brief is due May 26, briefs for respondent-intervenors are due June 25, and reply briefs are due July 9, with final briefs to be filed on July 30. 12/23/2019 Not Available Download Proposed briefing format and schedule filed by state and municipal, public health and environmental, power company, and clean energy trade association petitioners and Biogenic CO2 Coalition. 12/18/2019 Not Available Download Joint proposal on briefing schedule and format filed by EPA and other parties. 11/22/2019 Notice Download Notice of intention to participate filed by intervenor State of Nevada. Nevada filed a notice indicating it intended to join the briefs of the State and Municipal Petitioners. 11/22/2019 Order Download Motion to expedite denied and motions to hold in abeyance and sever and hold in abeyance denied. D.C. Circuit Declined to Expedite or Stay Challenges to ACE Rule. On November 22, 2019, the D.C. Circuit Court of Appeals denied a motion by the U.S. Environmental Protection Agency (EPA) to expedite pending challenges to the Affordable Clean Energy (ACE) rule, which repealed and replaced the Obama administration’s Clean Power Plan. The D.C. Circuit said the respondents had not “articulated ‘strongly compelling’ reasons that would justify expedition.” The court also denied motions by the Environmental and Public Health Petitioners and the State and Municipal Petitioners to hold the cases in abeyance pending the resolution of the petitioners’ requests for administrative reconsideration. (The Environmental and Public Health Petitioners also argued that the cases should be held in abeyance until EPA finalized its proposal to relax the application of New Source Review (NSR) requirements; the petitioners argued that EPA’s anticipated finalization of the NSR regulations would be “highly disruptive” to the litigation because it would alter essential aspects of the ACE rule, including costs, emissions consequences, and sources’ expected responses.) The D.C. Circuit also denied a motion by the Biogenic CO2 Coalition to sever its case—which solely raised the issue of EPA’s regulation of emissions from agricultural biomass feedstocks—and hold the case in abeyance pending EPA’s “forthcoming” administrative resolution of biogenic emissions issues. The court directed the parties to submit a proposed format for briefing within 30 days. 11/20/2019 Notice Download Notice filed by Environmental and Public Health Petitioners regarding motion for abeyance. 11/19/2019 Order Download Order issued granting Nevada's motion for voluntary dismissal. and dismissing motion to complete the record as moot. 11/18/2019 Order Download Motions to intervene granted. 10/30/2019 Notice Download Notice filed of pendency of bankruptcy for Murray Energy Corporation and of automatic stay of certain proceedings. 10/16/2019 Notice Download Notice filed by Public Health and Environmental Petitioners regarding their motion to complete the record. 10/11/2019 Reply Download Reply filed by Public Health and Environmental Petitioners in support of their motion for abeyance. 10/11/2019 Reply Download Reply filed by State and Municipal Petitioners in support of their motion for abeyance. 10/07/2019 Motion Download Motion filed by Public Health and Environmental Petitioners to complete the record for judicial review. 10/07/2019 Motion to Intervene Download Unopposed motion filed by Georgia Power Company to intervene in support of respondents. 10/07/2019 Motion to Intervene Download Motion for leave to intervene on behalf of respondents filed by Nevada Gold Mines and Newmont Nevada Energy Investment. 10/07/2019 Opposition Download Response filed by EPA in opposition to Biogenic CO2 Coalition's motion to sever and hold issues related to biogenic emissions in abeyance. 10/07/2019 Opposition Download Joint opposition of West Virginia and 20 other proposed intervenor-respondents opposing motion for abeyance. 10/07/2019 Statement of Issues Download Statement of issues filed by Public Health and Environmental Petitioners. 10/04/2019 Motion to Intervene Download Motion for leave to intervene in support of respondents filed by Basin Electric Power Cooperative. 10/04/2019 Motion to Intervene Download Unopposed motion for leave to intervene filed by State of Nevada. 10/04/2019 Opposition Download Response filed by EPA to motions to hold the case in abeyance. 10/04/2019 Opposition Download Opposition to motions for abeyance filed by Industry and Labor Respondent-Intervenors. 09/30/2019 Memorandum Download Memorandum filed by petitioners Robinson Enterprises, Inc. et al. in opposition to motions for abeyance. 09/30/2019 Opposition Download Opposition filed by petitioner Westmoreland Mining Holdings LLC's to motions for abeyance. 09/30/2019 Response Download Response filed by North American Coal Corporation to motions for abeyance. 09/25/2019 Motion Download Motion filed by State and Municipal Petitioners for abeyance pending action on petition for administrative reconsideration. 09/20/2019 Motion Download Motion filed by Environmental and Public Health Petitioners for abeyance pending final action on proposed revisions to the New Source Review program and final action on petitions for administrative reconsideration. Environmental and Public Health Petitioners and State and Municipal Petitioners filed their own motion requesting that the court hold the proceedings in abeyance pending EPA final action on petitions for reconsideration. 09/19/2019 Opposition Download Opposition filed by petitioners Robinson Enterprises, Inc. et al. to EPA's motion to expedite. 09/16/2019 Reply Download Reply filed by EPA in support of its motion to expedite. 09/12/2019 Motion to Intervene Download Motion filed by West Virginia and 20 other states, state officers, and state agencies to intervene as respondents. 09/11/2019 Order Download Motions for leave to intervene granted. 09/10/2019 Motion to Intervene Download Motion for leave to intervene in support of respondents filed by Indiana Energy Association and Indiana Utility Group. 09/10/2019 Opposition Download Opposition filed by Power Company Petitioners to EPA's motion to expedite. 09/09/2019 Opposition Download Opposition filed by State and Municipal Petitioners to EPA's motion to expedite. Parties Challenging Clean Power Plan Repeal Opposed Motions to Expedite. Petitioners challenging EPA’s repeal and replacement of the Clean Power Plan opposed EPA’s and aligned intervenors’ motions to expedite the case. The petitioners argued that the motions did not satisfy the standard described in the D.C. Circuit’s Handbook of Practice and Internal Procedures for expediting cases, which states that the court “grants expedited consideration very rarely” and that the reasons “must be strongly compelling.” The petitioners also argued that granting the motion would prejudice the petitioners’ interests. 09/09/2019 Opposition Download Opposition filed by Environmental and Public Health Petitioners to EPA's motion to expedite. 09/09/2019 Response Download Response filed by North American Coal Corporation to EPA's motion to expedite. 09/06/2019 Motion to Intervene Download Motion to intervene in support of respondents filed by North Dakota. 08/28/2019 Motion Download Motion to expedite filed by EPA. EPA filed a motion seeking to expedite the D.C. Circuit’s consideration of the case. EPA requested a briefing schedule in which petitioners would file opening briefs by December 5, and briefing would be completed in February, potentially allowing oral argument as early as April 2020. The petitioners did not consent to the motion. 08/07/2019 Motion to Intervene Download Motion for leave to intervene in support of respondents filed by certain American Electric Power companies. 08/07/2019 Motion to Intervene Download Motion for leave to intervene as respondent filed by America's Power. 08/07/2019 Motion to Intervene Download Motion to intervene filed by Murray Energy Corporation. 08/07/2019 Motion to Intervene Download Motion for leave to intervene filed by Westmoreland Mining Holdings LLC. A number of entities applied to intervene in support of EPA in the proceeding, including coal companies Murray Energy Corporation and Westmoreland Mining Holdings LLC, the national association of rural electric cooperatives, the U.S. Chamber of Commerce, owners of coal-fired generating facilities, and a trade association of companies involved in the production, transportation, and use of coal to produce electricity. 08/06/2019 Motion to Intervene Download Motion for leave to intervene filed by Chamber of Commerce of the United States of America. 08/01/2019 Motion to Intervene Download Motion for leave to intervene in support of respondents filed by National Rural Electric Cooperative Association. 07/08/2019 Petition for Review Download Petition for review filed. First Lawsuit Filed Challenging Repeal and Replacement of Clean Power Plan. On July 8, 2019, the American Lung Association and American Public Health Association filed the first petition for review challenging the U.S. Environmental Protection Agency’s (EPA’s) final rule repealing the Obama administration’s Clean Power Plan and replacing it with the Affordable Clean Energy Rule, which establishes emission guidelines for existing coal-fired power plants based on heat rate improvement as the best system of emissions reduction. -
New York v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 08/13/2019 Petition for Review Download Petition for review filed. On August 13, 2019, 22 states, the District of Columbia, and six cities filed a petition for review of EPA’s repeal of the Clean Power Plan and promulgation of the Affordable Clean Energy rule in its place. -
Appalachian Mountain Club v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 10/07/2019 Statement of Issues Download Statement of issues filed. 08/14/2019 Petition for Review Download Petition for review filed. On August 14, 2019, 10 environmental groups filed a separate petition to join the challenges to the repeal of the Clean Power Plan. -
Chesapeake Bay Foundation v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 10/07/2019 Statement of Issues Statement of issues filed by petitioner Chesapeake Bay Foundation. 09/17/2019 Motion to Intervene Download Motion to intervene as intervenor-respondent filed by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO. 09/17/2019 Motion to Intervene Download Motion to intervene as intervenor-respondent filed by International Brotherhood of Electrical Workers, AFL-CIO. 09/17/2019 Motion to Intervene Download Motion for leave to intervene as intervenor-respondent filed by United Mine Workers of America, AFL-CIO. 08/29/2019 Petition for Review Download Petition for review filed. On August 29, 2019, Chesapeake Bay Foundation filed petition for review of the repeal of the Clean Power Plan. -
Advanced Energy Economy v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 09/06/2019 Petition for Review Download Petition for review filed. -
American Wind Energy Association v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 09/06/2019 Petition for Review Download Petition for review filed. -
Biogenic CO2 Coalition v. EPA
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City & County of Denver v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 09/04/2019 Petition for Review Download Petition for review filed. -
North American Coal Corporation v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 09/05/2019 Petition for Review Download Petition for review filed. -
Nevada v. EPA
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Westmoreland Mining Holdings LLC v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 09/05/2019 Petition for Review Download Petition for review filed. -
Robinson Enterprises, Inc. v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 10/07/2019 Motion to Intervene Download Motion filed by public health and environmental organizations for leave to intervene in support of respondent. Public health and environmental organizations and states sought to intervene on EPA's behalf in proceedings filed by petitioners that indicated they intend to challenge EPA's underlying authority to issue any emission guidelines for carbon dioxide emissions from existing power plants under Section 111(d) of the Clean Air Act or that such authority is severely limited. 10/07/2019 Motion to Intervene Download Motion filed by states for leave to intervene in support of respondents. 10/07/2019 Statement of Issues Download Statement of issues filed. 09/05/2019 Petition for Review Download Petition for review filed. -
Consolidated Edison, Inc. v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 09/06/2019 Petition for Review Download Petition for review filed.