Description: Challenge to EPA's final Clean Power Plan rule.
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West Virginia v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 09/17/2019 Order Download Motions to dismiss petitions as moot granted. D.C. Circuit Dismissed Clean Power Plan Challenges. The D.C. Circuit Court of Appeals granted motions seeking to dismiss as moot the proceedings challenging the Obama administration’s Clean Power Plan, which established emission guidelines for greenhouse gases from existing power plants. The court dismissed the proceedings 11 days after the effective date of the U.S. Environmental Protection Agency (EPA) rule repealing the Clean Power Plan and finalizing the final Affordable Clean Energy rule in its place. 09/03/2019 Status Report Download Status report filed by EPA. 08/02/2019 Status Report Download Status report filed by EPA. 08/01/2019 Reply Download Reply filed by petitioners and petitioner-intervenors in support of motions to dismiss. 08/01/2019 Response Download Response filed by state and public health and environmental respondent-intervenors to motion to dismiss filed by Local Government Coalition for Renewable Energy. 07/31/2019 Response Download Response filed by EPA in support of petitioner Local Government Coalition for Renewable Energy's motion to dismiss. 07/25/2019 Motion to Dismiss Download Motion to dismiss petition for review as moot filed by petitioner Local Government Coalition for Renewable Energy. 07/25/2019 Response Download Response filed by state and public health and environmental respondent-intervenors to petitioners' motions to dismiss. 07/17/2019 Response Download Response filed by EPA in support of petitioners' motion to dismiss. 07/15/2019 Motion to Dismiss Download Motion for dismissal of petitions for review as moot filed by petitioners and petitioner-intervenors. Clean Power Plan Challengers Sought Dismissal of Proceedings as Moot. After EPA published a final rule repealing the Clean Power Plan and finalizing new greenhouse gas emission guidelines for coal-fired power plants, petitioners in the proceedings challenging the Clean Power Plan asked the D.C. Circuit Court of Appeals to dismiss those proceedings as moot. EPA filed responses supporting dismissal. States and public health and environmental organizations that intervened to defend the Clean Power Plan opposed dismissal as premature because the new rule does not take effect until September 6. The respondent-intervenors asked the court to deny the motions or hold them in abeyance. The respondent-intervenors also noted that a challenge to the repeal and replacement rule had already been filed and that more petitioners for review were anticipated. The respondent-intervenors reserved their rights to object to the revival of the petitioners’ claims in this case should those proceedings result in the D.C. Circuit vacating the repeal of the Clean Power Plan. 07/03/2019 Status Report Download Status report filed by EPA. 06/20/2019 Status Report Download Status report filed by EPA. EPA Notified D.C. Circuit of Clean Power Plan Repeal and Replacement. On June 20, 2019, the U.S. Environmental Protection Agency (EPA) notified the D.C. Circuit that EPA Administrator Andrew Wheeler had signed a final rule repealing the Clean Power Plan and instituting new emission guidelines for existing power plants. EPA recommended that the court continue to hold the pending challenges to the Clean Power Plan in abeyance. 06/05/2019 Status Report Download Status report filed by EPA. 05/17/2019 Order Download Motion of Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation to withdraw as petitioner and motion of State of Nevada to withdraw as amicus curiae granted. 05/15/2019 Motion Download Motion filed by State of Nevada to withdraw as amicus curiae. 05/14/2019 Motion Download Motion filed by Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation to withdraw as petitioner. 05/06/2019 Status Report Download Status report filed by EPA. 04/05/2019 Order Download Order issued directing that the cases remain in abeyance for 60 days. D.C. Circuit Granted EPA Request to Continue Abeyance for Clean Power Plan Challenges; EPA Sent Final Replacement Rule to OMB. On April 5, 2019, the D.C. Circuit Court of Appeals granted EPA’s request to continue holding the cases challenging the Obama administration’s Clean Power Plan in abeyance while EPA considers a potential replacement rule to address carbon dioxide emissions from existing power plants. The court ordered that the cases be held in abeyance for 60 more days, with status reports to be filed by EPA at 30-day intervals. On April 26, 2019, EPA submitted its final replacement rule—which the proposed rule called the “Affordable Clean Energy Rule”—to the Office of Management and Budget (OMB) for review. 03/14/2019 Opposition Download Opposition filed by respondent-intervenors to EPA's request for further abeyance. Respondent-intervenors opposed EPA's request that the court continue to hold the case in abeyance but asked, in the alternative, that the abeyance period be limited to no more than 60 days with a requirement for status reports every 30 days. 03/11/2019 Status Report Download Status report filed by EPA. EPA Told D.C. Circuit It Expected to Take Final Action on Proposed Clean Power Plan Replacement by End of June. In a status report filed with the D.C. Circuit on March 11, 2019, EPA indicated that the government shutdown had delayed its work on reviewing the public comments on the Affordable Clean Energy Rule (ACE Rule) that EPA has proposed as a replacement for the Obama administration’s Clean Power Plan to regulate carbon emissions from existing power plants. EPA said it intended and expected that it would be in a position to take final action on the ACE Rule proposal in the second quarter of 2019. EPA requested that the court continue to hold the cases challenging the Clean Power Plan in abeyance pending the conclusion of rulemaking. 03/08/2019 Order Download Motion by Gulf Power Company to withdraw as petitioner granted. 02/22/2019 Motion Download Motion filed by Gulf Power Company to withdraw as petitioner. 02/08/2019 Status Report Download Status report filed by EPA. 01/30/2019 Order Download Colorado's motion to withdraw as petitioner granted. Michigan, Colorado Withdrew from Clean Power Plan Challenge. The D.C. Circuit granted motions by Michigan and Colorado to withdraw as petitioners in the case challenging the Clean Power Plan. Both states sought to withdraw after newly elected attorneys general took office. Democrat Dana Nessel was elected attorney general for Michigan, replacing Republican Bill Schuette. In Colorado, Democrat Phil Weiser replaced Republican Cynthia Coffman as attorney general. 01/26/2019 Motion Download Motion to withdraw as petitioner filed by State of Colorado. 01/24/2019 Order Download Motion for an extension of the deadline to filed status report granted. The D.C. Circuit granted EPA an extension for the filing of its January 2019 status report due to the partial government shutdown. The court directed EPA to file the report within 14 days of the restoration of appropriations and the Department of Justice’s resumption of usual civil litigation functions. 01/23/2019 Order Download Michigan's motion to withdraw as petitioner granted. 01/18/2019 Motion Download Motion to withdraw as petitioner filed by State of Michigan. 01/16/2019 Motion Download Respondents filed motion for an extension of the deadline to file 30-day status report in light of the lapse in appropriations. 12/21/2018 Order Download Abeyance continued and motion to decide the case on the merits denied. 12/21/2018 Status Report Download Status report filed by EPA. EPA Said It Intended to Finalize Affordable Clean Energy Rule in Spring 2019. In the U.S. Environmental Protection Agency’s (EPA’s) 30-day status report to the court, filed on December 21, 2018, EPA said its “intention and expectation remains that the Agency will be in a position to take final rulemaking action in the Spring of 2019” on its proposed “Affordable Clean Energy Rule,” for which the comment period closed on October 31, 2018. 11/21/2018 Status Report Download Status report filed by EPA. On November 21, 2018, EPA filed a status report in the still-pending challenges to the Clean Power Plan in the D.C. Circuit Court of Appeals. The court has held the cases in abeyance since April 28, 2017. In September 2018, intervenors defending the Clean Power Plan asked the D.C. Circuit to discontinue the abeyance and decide the merits of the case. In the November status report, EPA told the court it intended and expected to take final rulemaking action on a replacement rule for the Clean Power Plan “by the first part of 2019.” EPA said the court should continue to hold the cases in abeyance pending the conclusion of the rulemaking. 10/24/2018 Status Report Download Status report filed by EPA. 09/24/2018 Status Report Download Status report filed by EPA. 09/21/2018 Reply Download Reply filed in support of motion to decide the merits of case. 09/14/2018 Opposition Download Opposition filed by EPA to intervenors' motion to decide the merits of case. 09/14/2018 Response Download Response filed by petitioners and petitioner-intervenors in opposition to motion to decide the merits of the case. 09/04/2018 Motion Download Response opposing requests for further abeyance combined with motion to decide the merits of the case filed by respondent-intervenors. 08/27/2018 Status Report Download Status report in support of continued abeyance filed by petitioner North Dakota. North Dakota filed a separate status report in support of continued abeyance, asserting that it would suffer unique harms if the court removed the abeyance because it was the principal proponent of an argument that the Clean Power Plan violated the Clean Air Act’s delegation to the states of authority to establish emission rate performance standards for existing power plants. North Dakota said that as a major lignite-producing coal state, it was disproportionately impacted by this “usurpation” of state authority and that its arguments on this issue “have not been emphasized by other petitioners” and “could potentially be lost if the case is remanded to the EPA.” 08/24/2018 Status Report Download EPA status report filed. EPA and Clean Power Plan Challengers Asked D.C. Circuit to Continue Holding Challenges in Abeyance Until EPA Completes New Rulemaking. After EPA Acting Administrator Andrew Wheeler signed a proposed rule to replace the Clean Power Plan regulations with the “Affordable Clean Energy Rule,” EPA filed a status report in the D.C. Circuit asking that the cases challenging the Clean Power Plan “continue to be held in abeyance pending the conclusion of this high priority rulemaking.” EPA said it was committed to completing the rulemaking “as expeditiously as practicable.” 08/24/2018 Status Report Download Status report in support of continued abeyance filed by petitioners and petitioner-intervenors. 07/26/2018 Status Report Download Status report filed by EPA. EPA Reported That Proposal for Clean Power Plan Replacement Was Under OMB Review. On July 26, EPA submitted a status report to the D.C. Circuit indicating that it had completed its review of public comments received on the advance notice of proposed rulemaking for a replacement for the Clean Power Plan and had submitted its proposed rule to the Office of Management and Budget (OMB) on July 9. EPA said the cases should remain in abeyance pending the conclusion of this “high priority” rulemaking. 06/26/2018 Order Download Order issued continuing abeyance. D.C. Circuit Continued Abeyance for Long-Pending Challenges to Clean Power Plan, But Three Judges Expressed Concerns About Prolonged Delay. On June 26, 2018, the D.C. Circuit Court of Appeals ordered that the proceedings challenging the Clean Power Plan remain in abeyance for 60 more days. Two judges wrote statements, both of which were joined by a third judge, indicating a disinclination to approve future abeyances. Judge Wilkins wrote that the petitioners challenging the Clean Power Plan and EPA had “hijacked” the court’s equitable powers for the purposes of maintaining the status quo while EPA decides the disposition of the Clean Power Plan. Judge Wilkins, joined by Judge Millett, said that if EPA or the petitioners wished to further delay operation of the Clean Power Plan, “then they should avail themselves of whatever authority Congress gave them to do so, rather than availing themselves of the Court’s authority under the guise of preserving jurisdiction over moribund petitions.” Judge Tatel, also joined by Judge Millett, wrote that “the untenable status quo derives in large part from petitioners’ and EPA’s treatment of the Supreme Court’s order staying implementation of the Clean Power Plan pending judicial resolution of petitioners’ legal challenges as indefinite license for EPA to delay compliance with its obligation under the Clean Air Act to regulate greenhouse gases.” Judge Tatel suggested that the parties had an obligation to advise the Supreme Court of the “circumstances as they stand today” so that the Court may “decide for itself whether the temporary stay it granted pending judicial assessment of the Clean Power Plan ought to continue now that it is being used to maintain the status quo pending agency action.” 06/01/2018 Status Report Download Status report filed by EPA. 05/09/2018 Opposition Download Opposition filed by state and municipal intervenors to EPA's request for further abeyance. 05/09/2018 Response Download Response filed by respondent-intervenor public health and environmental organizations to respondent's further request to hold case in abeyance. 05/02/2018 Status Report Download Status report filed by EPA. 03/01/2018 Order Download Order issued holding cases in abeyance for 60 days. 01/30/2018 Motion Download Motion to withdraw as petitioner filed by New Jersey. New Jersey Withdrew from Clean Power Plan Challenge. Two weeks after the inauguration of Democrat Phil Murphy as governor, New Jersey filed a motion to withdraw as a petitioner in the challenge to the Clean Power Plan. 01/17/2018 Opposition Download Opposition to EPA's request for further abeyance filed by state and municipal respondents-intervenors. States, Cities, and Environmental and Public Health Groups Urged D.C. Circuit to Issue Decision on Merits. The state and municipal respondent-intervenors and public health and environmental respondent-intervenors asked the court to reject the request for indefinite abeyance. They urged the court to issue its decision on the merits of the case or, if it decided to continue abeyance, to limit the abeyance to a 60-day period and to require EPA to provide regular status reports. 01/17/2018 Response Download Response to EPA's request to hold case in abeyance filed by public health and environmental organizations. 01/10/2018 Status Report Download Status report submitted by EPA. On January 10, 2018, the U.S. Environmental Protection Agency (EPA) filed a 30-day status report in the D.C. Circuit requesting that the court continue to hold the case challenging the Clean Power Plan in abeyance pending the conclusion of EPA rulemaking. EPA stated that the public comment period on its proposal to repeal the Clean Power Plan had closed on January 16 and that it had issued an advance notice of proposed rulemaking soliciting information on potential replacements in December. 12/11/2017 Status Report Download EPA submitted status report. 11/09/2017 Order Download Order entered holding cases in abeyance for 60 more days. 10/17/2017 Response Download Response to EPA status report filed by respondent-intervenor public health and environmental organizations. States and public health and environmental organizations that intervened as respondents in the cases opposed the continued abeyance. The public health and environmental organizations argued that EPA had not satisfied the requirements for abeyance and that the court should decide the fully briefed and argued matter because “the case involves a time-sensitive statutory obligation to protect the public health and welfare from grave threats.” The organizations argued that “[t]he impacts of climate change are increasingly evident and dire” and that the “unaddressed threats” and EPA’s “unmet statutory duties” counseled against the court exercising its discretion in a way that would cause further delay. The states similarly argued that continued abeyance would be inappropriate because EPA had not proposed an alternative way to reduce greenhouse gas emissions from existing power plants and a “pure repeal … would put the agency in violation of its statutory duty to regulate carbon dioxide from existing power plants under the Clean Air Act, a duty the agency is not contesting it must fulfill.” Both sets of intervenors also said the court should limit any abeyance period to 120 days. 10/17/2017 Response Download Response to EPA status report and request for indefinite abeyance filed by state and municipal respondent-intervenors. 10/10/2017 Status Report Download Status report filed by EPA. After Proposing Repeal of Clean Power Plan, EPA Sought Continued Abeyance of Pending Cases in D.C. Circuit. On the same day that EPA Administrator Scott Pruitt signed a proposal to repeal the Clean Power Plan, EPA asked the D.C. Circuit Court of Appeals to continue to hold the cases challenging the Clean Power Plan in abeyance pending the conclusion of rulemaking. 09/07/2017 Status Report Download Status report filed by EPA. EPA Reported That It Expected to Finalize Clean Power Plan Rule in Fall 2017. In a status report filed in the D.C. Circuit Court of Appeals on September 7, 2017 in the proceedings challenging the Clean Power Plan, EPA indicated that its review of the Clean Power Plan had inadvertently been classified as a “long term action” rather than as in the “proposed rule stage” in the Office of Information and Regulatory Affairs’ unified regulatory agenda. EPA requested that the D.C. Circuit continue to hold the proceedings in abeyance. EPA said its review should have been classified as in the “proposed rule stage” because it expected the EPA Administrator to sign a proposed rule in the fall of 2017. EPA said OIRA was currently reviewing the draft proposed rule. 08/08/2017 Order Download Order issued holding cases in abeyance for 60 more days. D.C. Circuit Continued to Hold Clean Power Plan Case in Abeyance. The D.C. Circuit ordered—on its own motion—that challenges to the Clean Power Plan continue to be held in abeyance for 60 more days and that EPA continue filing status reports at 30-day intervals. 08/03/2017 Response Download Response filed by respondent-intervenors in response to EPA status report. Public health and environmental organizations that had intervened as respondents asked the court to decide the case on the merits or terminate it by remanding the case to EPA. They said EPA’s classification of its Clean Power Plan review as a “Long Term Action” in the Trump administration’s Current Unified Agenda of Regulatory and Deregulatory Actions indicated a proposed rule might be delayed for at least another year. 05/30/2017 Status Report Download Status report filed by EPA. In a status report submitted on May 30, 2017, EPA indicated that it “may be prepared to begin the interagency review process of a … proposed regulatory action in the near future” and that the cases should remain in abeyance pending the conclusion of EPA’s review and any resulting rulemaking. 05/15/2017 Brief Download Supplemental brief submitted by EPA in support of abeyance. EPA submitted its supplemental brief in response to the D.C. Circuit’s request that the parties address whether the cases should be remanded rather than held in abeyance. EPA said continuing to hold the cases in abeyance would “better preserve the status quo, conserve judicial resources, and allow the new Administration to focus squarely on completing its current review … as expeditiously as possible.” EPA indicated that a remand order “would raise substantial questions” regarding the status of the Supreme Court’s stay of the Clean Power Plan. EPA Asked D.C. Circuit to Continue Hold on Clean Power Plan Cases. In a supplemental brief, EPA urged the D.C. Circuit Court of Appeals to continue to hold challenges to the Clean Power Plan in abeyance while it reviewed the regulations and considered its next steps. 05/15/2017 Brief Download Supplemental brief submitted by petitioners and petitioner-intervenors. The petitioners and petitioner-intervenors supported EPA’s view that the cases should be held in abeyance, arguing that doing so would best protect their rights to judicial review and the court’s ability to resolve challenges to the Clean Power Plan if EPA decided not to revise or rescind the rule. The petitioners and petitioner-intervenors also argued that holding the cases in abeyance would be consistent with the D.C. Circuit’s established practices, while remand would jeopardize the Supreme Court’s stay. 05/15/2017 Brief Download Supplemental brief submitted by power company respondent-intervenors. The power companies also indicated that in the event the court did not issue a merits decision, remand would be a “sounder” alternative than abeyance. 05/15/2017 Brief Download Supplemental brief filed by environmental and public health organization respondent-intervenors. Parties that intervened as respondents to defend the Clean Power Plan—including environmental and public health groups, power companies, and states and municipalities—argued against continuing the hold. The environmental and public health groups asserted that doing so would “convert temporary enforcement relief pending judicial review into a long-term suspension of the Clean Power Plan, without any court having issued a decision on its legal merits and without following the administrative steps necessary to amend, suspend, or withdraw a regulation.” While they said that remand would be a more appropriate solution, they also urged the D.C. Circuit to issue a decision on the merits. 05/15/2017 Brief Download Supplemental brief filed by state and municipal respondent-intervenors. The state and municipal respondent-intervenors likewise argued for a decision on the merits but said that remand would be “less detrimental” than an open-ended abeyance. They urged the court to limit the duration of the abeyance period to six months. 04/28/2017 Order Download Motion to hold cases in abeyance granted. D.C. Circuit Put Clean Power Plan Challenges on Hold. On April 28, 2017, the D.C. Circuit Court of Appeals granted the U.S. Environmental Protection Agency’s (EPA’s) motions to hold the cases challenging the Clean Power Plan in abeyance while EPA undertakes its review of the regulations. The court ordered that the case be put on hold for 60 days and that EPA file status reports every 30 days. The court further ordered the parties to file supplemental briefs addressing whether the cases should be remanded to EPA rather than held in abeyance. Those briefs were to be submitted by May 15. The court deferred ruling on multiple motions requesting that petitions challenging EPA’s January 2017 denial of requests for reconsideration of the Clean Power Plan rule be severed and consolidated with the pending Clean Power Plan challenges. The D.C. Circuit held oral arguments in the Clean Power Plan case in September 2016. In Executive Order No. 13783 issued on March 28, 2017, President Trump ordered EPA to review the Clean Power Plan regulations and, if appropriate, to suspend, revise, or rescind them. 04/12/2017 Reply Download Reply filed in support of EPA's motion to hold cases in abeyance. 04/06/2017 Response Download Response submitted by petitioners and petitioner-respondents in support of EPA's motion for abeyance. 04/05/2017 Opposition Download Opposition filed by state and municipal respondent-intervenors to motion to hold proceeding in abeyance. 04/05/2017 Opposition Download Opposition to motion to EPA's motion to hold cases in abeyance filed by respondent-intervenor public health and environmental organizations. 03/28/2017 Notice Download Notice of executive order, EPA review of Clean Power Plan and forthcoming rulemaking; motion, and motion to hold cases in abeyance filed by EPA. On March 28, 2017, President Trump signed the Promoting Energy Independence and Economic Growth executive order on March 28. The executive order directed EPA to review the Clean Power Plan (CPP), which established carbon dioxide emission limits for existing power plants, and also indicated that the attorney general should request a stay or other appropriate relief in the proceedings challenging the CPP. On the same day that the president signed the order, the Department of Justice filed a notice of the executive order, EPA’s review of the regulations, and potential forthcoming rulemaking, and moved to hold the CPP cases in abeyance. Respondent-intervenors indicated they would oppose the motions to hold the cases in abeyance. 03/13/2017 Opposition Download Opposition filed by state and municipal respondent-intervenors to motion to sever and consolidate. 03/13/2017 Response Download Response filed by EPA to motion to sever and consolidate. 03/02/2017 Opposition Download Opposition to motion to sever and consolidate filed by respondent-intervenor environmental and public health organizations. 03/01/2017 Motion Download Motion filed by EPA seeking more time to respond to motion to sever and consolidate. 02/24/2017 Motion Download Motion filed by petitioners who are also petitioners in North Dakota v. EPA, Nos. 17-1014 et al. (DC Cir.). to sever and consolidate. 02/23/2017 Motion Download Motion filed by North Carolina Department of Environmental Quality to withdraw as petitioner. North Carolina Withdrew from Litigation Challenging to Clean Power Plan. After the election of Democrat Roy Cooper as governor, the North Carolina Department of Environmental Quality moved to withdraw as a petitioner from the litigation challenging EPA’s Clean Power Plan. 08/25/2016 Letter Download Competitive Enterprise Institute filed response to EPA Rule 28(j) letter. See below. 08/17/2016 Letter Download EPA filed response to petitioners' Rule 28(j) letter. See below. 08/17/2016 Letter Download EPA filed Rule 28(j) letter. See below. 08/17/2016 Order Download Order issued. D.C. Circuit Set Schedule for Clean Power Plan Oral Argument, Parties Argued for Relevance of Recent Clean Air Act Precedents. Oral argument on the Clean Power Plan will take place on September 27 in the D.C. Circuit Court of Appeals. The D.C. Circuit allocated time for argument over approximately three and a half hours on five categories of issues: statutory issues other than Section 112 of the Clean Air Act, Section 112, constitutional issues, notice issues, and record-based issues. In July and August, the petitioners and EPA submitted letters to the court to notify it of supplemental authorities—recent opinions issued by the D.C. Circuit and other circuit courts of appeal—that the parties believed to be pertinent and significant. Petitioners argued that the Fifth Circuit Court of Appeals’ stay of an EPA rule that disapproved state implementation plans from Texas and Oklahoma supported their argument that EPA’s assessment of grid reliability was insufficient. EPA said the ruling had minimal relevance and that none of the deficiencies identified by the Fifth Circuit were present in this case. EPA told the D.C. Circuit that the Seventh Circuit’s analysis upholding DOE’s consideration of the global benefits of reducing carbon emissions when setting energy efficiency standards would support EPA’s accounting for global benefits in the Clean Power Plan. The Clean Power Plan petitioners responded that the Seventh Circuit decision was not binding, involved a different statutory scheme, and did not address their arguments regarding comparison of global benefits and domestic costs. Clean Power Plan challengers also told the D.C. Circuit that its decision in a challenge to solid waste incineration units supported their argument that EPA could not base a standard based on averaging regulated sources’ and non-sources’ emissions, and that its decision upholding EPA’s withdrawal of a Clean Water Act disposal permit supported its arguments concerning consideration of costs. EPA said that these decisions did not support petitioners’ arguments. 08/08/2016 Letter Download Petitioners filed Rule 28(j) letter. See above. 08/02/2016 Letter Download EPA filed response to state petitioners' Rule 28(j) letter. See above. 08/02/2016 Letter Download EPA filed response to Competitive Enterprise Institute's Rule 28(j) letter. See above. 07/27/2016 Letter Download Competitive Enterprise Institute filed Rule 28(j) letter. See above. 07/27/2016 Letter Download State petitioners filed Rule 28(j) letter. See above. 05/16/2016 Order Download Order issued on court's own motion. D.C. Circuit Rescheduled Clean Power Plan Oral Argument for En Banc Hearing. On its own motion, the D.C. Circuit Court of Appeals ordered that oral argument on the challenges to the United States Environmental Protection Agency’s Clean Power Plan be rescheduled to occur before the en banc court on September 27, 2016, rather than before a three-judge panel on June 2, 2016. The Federal Rules of Appellate Procedure provide that an en banc hearing “is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” The order indicated that Judge Merrick Garland and Judge Cornelia Pillard had not participated in the matter. An en banc court without Judges Garland and Pillard would be composed of three judges appointed by President Obama, three judges appointed by President George W. Bush, two judges appointed by President Clinton, and one judge appointed by President George H.W. Bush. 03/28/2016 Brief Download EPA filed initial brief. Briefs Filed in Defense of Clean Power Plan. On March 28, the United States Environmental Protection Agency (EPA) filed its initial brief defending the Clean Power Plan, which regulates carbon dioxide emissions from existing power plants. The brief defended EPA authority to rely on shifting generation of electricity to cleaner sources of power as the best system of emission reduction. EPA also argued that regulation of hazardous air pollutants from power plants under Section 112 of the Clean Air Act did not bar regulation of carbon dioxide emissions under Section 111 and struck back at arguments that the Clean Power Plan unconstitutionally impinged on state authority. The brief also addressed procedural claims regarding changes made to the regulations between the proposed and final versions and defended the reasonableness of specific facets of the rule. In the days after EPA filed its brief, a number of intervenor-respondents and amicus parties filed their briefs in support of the Clean Power Plan, including 18 states; power companies representing almost 10 percent of the nation’s total generating capacity; renewable energy trade associations; environmental and public health groups; more than 200 current and former members of Congress; two former EPA administrators in Republican administrations; and more than 50 city and county governments along with three mayors, the U.S. Conference of Mayors, and the National League of Cities. 03/21/2016 Order Download Petitioner's request to file supplemental brief denied. The D.C. Circuit Court of Appeals denied a motion by petitioner Energy & Environment Legal Institute (EELI) to file a supplemental brief that addressed EELI’s claims that an EPA official engaged in improper communications with environmental advocacy groups using a personal email account. 02/25/2016 Not Available Download EPA filed opposition to supplemental brief filed by EELI. 02/23/2016 Amicus Motion Download Organizations that represent women, minorities, and seniors, and those who advocate for free-market solutions to help these vulnerable populations filed an amicus brief in support of petitioners. 02/23/2016 Amicus Motion Download Members of Congress filed an amicus brief in support of petitioners. 02/23/2016 Amicus Motion Download Former state public utility commissioners filed amicus brief in support of petitioners. 02/19/2016 Brief Download Petitioners filed joint opening brief on core legal issues. Merits Briefing on Clean Power Plan Commenced in D.C. Circuit. Ten days after the Supreme Court stayed implementation of the Clean Power Plan, the petitioners filed a joint opening brief in the D.C. Circuit, and on February 23, a number of briefs were filed by amicus parties in support of the petitioners, including members of Congress, former state public utility commissioners, and a group of “organizations that represent women, minorities, and seniors, and those who advocate for free-market solutions to help these vulnerable populations.” In their joint brief, the petitioners contended that the Clean Power Plan was outside the authority vested in the United States Environmental Protection Agency (EPA) by Section 111 of the Clean Air Act, and that Section 112 expressly prohibited the Clean Power Plan. They also argued that the Clean Power Plan rule unconstitutionally abrogated state authority and “commandeer[ed] and coerc[ed]” states into implementing federal energy policy. 01/21/2016 Order Download Stay of Clean Power Plan denied. On January 21, 2016, the D.C. Circuit Court of Appeals denied motions asking for a stay of EPA’s Clean Power Plan. The order stated that the petitioners had not “satisfied the stringent requirements for a stay pending court review.” The court also ordered that consideration of the appeals be expedited. Oral argument was scheduled for June 2, 2016, and the court asked the parties to reserve June 3 in the event that argument did not conclude on the 2nd. The order indicated that the members of the panel that will review the challenge are Judges Judith W. Rogers (appointed by President Bill Clinton), Karen LeCraft Henderson (appointed by President George H.W. Bush) and Sri Srinivasan (appointed by President Barack Obama). 01/15/2016 Amicus Motion Download Public health organizations filed a motion for leave to participate as amici curiae on behalf of respondents. 01/11/2016 Amicus Motion Download Municipal Electric Authority of Georgia filed for leave to participate as amicus curiae on behalf of petitioners. 12/31/2015 Not Available Download Non-state movants filed reply in support of motion to establish briefing format that bifurcated issues. 12/31/2015 Not Available Download States filed reply in support of their motion to establish briefing format that bifurcated issues. 12/23/2015 Not Available Download States filed reply in support of motions for stay. 12/23/2015 Not Available Download Peabody Energy Corp. filed reply in support of motions for stay. 12/21/2015 Response Download EPA opposed petitioners' motion to bifurcate issues for briefing. 12/21/2015 Response Download Power companies filed opposition to petitioners' motions for stay. 12/21/2015 Response Download Respondent-intervenors filed opposition to motion to establish briefing format that bifurcated issues. 12/18/2015 Motion to Intervene Download City of Los Angeles, by its Department of Water and Power, sought to intervene alongside other respondent-intervenors from the power sector. 12/18/2015 Statement of Issues Download States filed statement of issues. 12/17/2015 Amicus Motion Download NYU Law School's Institute for Policy Integrity sought leave to file an amicus curiae brief in support of respondents. 12/14/2015 Not Available Download Respondent-intervenors filed a corrected table of contents for their exhibits in support of their opposition to motions for stay. 12/08/2015 Motion Download Petitioners requested expedited briefing scheduling on limited set of issues. Clean Power Plan Challengers Asked D.C. Circuit to Expedite Consideration of EPA Authority. Petitioners challenging EPA’s Clean Power Plan asked the D.C. Circuit to expedite the briefing schedule on “fundamental legal issues” raised by the regulations so that oral argument on these issues would be held by May 2016. The petitioners contended that it was “critical” the Clean Power Plan’s lawfulness be adjudicated as soon as possible, “[g]iven the acute importance of this case to the nation’s energy system and its customers” and the irreparable harm the regulations were causing. The fundamental legal issues for which the petitioners sought speedy adjudication included EPA’s authority to regulate power plants under Section 111(d) when they are already regulated under Section 112, and to use Section 111(d) to “fundamentally restructure the way in which electricity is generated and distributed.” The petitioners asked that “state-specific and programmatic” issues be severed and placed in a separate docket. EPA opposed the petitioners’ plan. 12/08/2015 Not Available Download Respondent-intervenors filed exhibits in support of their opposition to petitioners' stay request. 12/08/2015 Response Download Power companies filed response opposing request for stay. 12/08/2015 Response Download States filed response opposing request for stay. 12/08/2015 Response Download Environmental and public health organizations filed opposition to petitioners' motions for stay. 12/08/2015 Response Download "Advanced Energy Associations" filed opposition to petitioners' motions for stay. 12/07/2015 Motion to Intervene Download Power companies sought to intervene alongside other respondent-intervenors from the power sector. 12/03/2015 Amicus Motion Download Motion filed by former EPA administrators to participate as amici curiae. 12/03/2015 Response Download EPA opposed petitioners' motions for stay. Additional Parties Joined Clean Power Plan Litigation; EPA Filed Opposition to Stay. As of December 4, additional petitions challenging the final Clean Power Plan rule had been filed, bringing the total number of petitions challenging EPA’s carbon dioxide emission standards for existing power plants to 28 and the total number of states challenging the rule to 27. All of the petitions were consolidated under the caption West Virginia v. EPA, No. 15-1363. On December 3, 2015, EPA filed its brief opposing motions to stay the rule. EPA said that the petitioners were unlikely to succeed on the merits, arguing that its carbon dioxide emissions guidelines were within its authority and that it had not impinged on the regulatory turf of other federal agencies or the states. In addition, EPA said that neither the states nor the industry petitioners had shown a likelihood of irreparable injury, and that a stay would not be in the public interest because climate change was already affecting the national public health, welfare, and environment and because grid reliability and electricity rates were not threatened by the rule. 12/01/2015 Amicus Motion Download Philip Zoebisch, a private citizen, filed a motion seeking leave to file an amicus curiae brief in support of petitioners. 11/30/2015 Order Download Order issued. On November 30, the D.C. Circuit extended the deadline for filing initial submissions and procedural motions from November 30 to December 18. The deadline for dispositive motions was extended to December 28. 11/24/2015 Motion to Intervene Download Motion to intervene filed by West Virginia non-governmental organizations. 11/20/2015 Motion to Intervene Download Motion for leave to intervene in support of petitioners filed by Dixon Bros., Inc. et al. 11/11/2015 Response Download Response filed in support of motions for stay by Energy and Environmental Legal Institute. 11/06/2015 Motion Download Corrected motion for stay filed by Mississippi Department of Environmental Quality. 11/05/2015 Motion Download Motion to stay final rule filed by Basin Electric Power Cooperative. 11/05/2015 Motion Download Motion for stay filed by Peabody Energy Corp. 11/05/2015 Motion to Intervene Download Motion for leave to intervene on behalf of respondents filed by power companies. 11/05/2015 Motion to Intervene Download Motion to intervene in support of respondents filed by NextEra Energy, Inc. 11/04/2015 Motion to Intervene Download Motion for leave to intervene as respondents filed by states. Parties Sought to Intervene on Both Sides of Clean Power Plan Challenge. A group of 18 states, joined by the District of Columbia and six municipalities, have moved to intervene on behalf of EPA, along with a number of other parties, including owners, developers, and operators of power plants; the municipally-owned utilities of Austin and Seattle; and Pacific Gas and Electric Company, a utility that provides electricity and gas to northern and central California. In addition, two former EPA administrators—William D. Ruckelshaus, EPA’s first and fifth administrator, and William K. Reilly, who led the agency during President George H.W. Bush’s administration—sought to participate on EPA’s behalf as amici curiae. Additional parties have also asked to intervene on behalf of the petitioners challenging the Clean Power Plan rule. 11/02/2015 Not Available Download Request for reconsideration of scheduling order withdrawn. 10/29/2015 Motion Download Motion for stay filed by North Dakota. 10/29/2015 Motion to Intervene Download Motion for leave to intervene in support of petitioners filed by Peabody Energy Corp. 10/29/2015 Not Available Download Request for reconsideration of scheduling order filed by Basin Electric Power Cooperative. 10/29/2015 Order Download Scheduling order issued. In a clerk’s order, deadlines were set for submissions not related to the motions for stay, including statements of issues to be raised (November 30), procedural motions (November 30), and dispositive motions (December 14). 10/29/2015 Order Download Scheduling order issued for motions to stay. After EPA submitted a motion for a consolidated briefing schedule, the D.C. Circuit issued an order on October 29 that would require any additional motions for a stay to be filed by November 5, though one petitioner, Basic Electric Power Cooperative, initially objected to this schedule as unfair and asked for reconsideration. The October 29 order required briefing on the stay motions to be completed on December 23. In addition petitioners were ordered to identify lead or liaison counsel for appropriate groups of petitioners within 10 days. 10/28/2015 Motion Download Motion for stay filed by Oklahoma. 10/28/2015 Motion Download Motion to establish consolidated briefing schedule filed by EPA. 10/27/2015 Motion to Intervene Download Motion to intervene in support of respondents filed by Advanced Energy Economy. 10/27/2015 Motion to Intervene Download Motion for leave to intervene in support of respondents filed by not-for-profit environmental and public health advocacy organizations. 10/26/2015 Motion to Intervene Download Motion to intervene in support of respondent filed by American Wind Energy Association. 10/23/2015 Motion Download Coal industry motion for stay filed. 10/23/2015 Motion Download Motion for stay filed by multiple petitioners (Part 1 of 2). 10/23/2015 Motion Download Motion for stay filed by multiple petitioners (Part 2 of 2). 10/23/2015 Motion Download Motion for stay filed by U.S. Chamber of Commerce et al. 10/23/2015 Motion Download Motion for stay and for expedited consideration filed by state petitioners. 10/23/2015 Motion Download Coal industry motion for stay (Exhibit 1). 10/23/2015 Motion Download Coal industry motion to stay (Exhibits 2-14). 10/23/2015 Petition for Review Download Petition for review filed. Opponents of Clean Power Plan Filed Petitions for Review, Asked D.C. Circuit for Stay. After the United States Environmental Protection Agency (EPA) published its final Clean Power Plan rule in the Federal Register, 21 petitions for review were filed in the D.C. Circuit Court of Appeals to challenge the rule, which regulates carbon dioxide emissions from existing power plants. The petitioners included 26 states; a number of utilities, electric cooperatives, and trade associations representing utilities; two unions representing miners and workers in skilled trades such as welding and fabrication of boilers, ships, pipelines, and other industrial facilities; a coal mining company and other organizations representing the coal industry; the National Association of Home Builders; the U.S. Chamber of Commerce; a trade association for railroads; and other organizations representing manufacturing, industrial, and business interests. The states led by West Virginia have asked the D.C. Circuit to stay the rule and to expedite consideration of their petition. In addition, Oklahoma and North Dakota each asked for a stay in their separate proceedings, and three other motions for a stay were filed: one by petitioners representing the coal industry, one by the U.S. Chamber of Commerce and its co-petitioners, and one by utility interests (led by Utility Air Regulatory Group) and the two unions. The American Wind Energy Association, Advanced Energy Economy (“a national organization of businesses dedicated to making the energy we use secure, clean, and affordable”), and nine environmental and public health organizations (led by the American Lung Association) sought to intervene on behalf of EPA, while Peabody Energy Corporation, a coal company, sought to intervene on behalf of the petitioners. -
West Virginia v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 07/27/2018 Letter Download Letter submitted by environmental and public health organizations. Organizations Suggested Supreme Court Might Require Parties to Explain Why Stay of Clean Power Plan Should Remain in Effect. On July 27, 2018, public health and environmental organizations who intervened to defend the Clean Power Plan submitted a letter to Chief Justice John Roberts “to notify the Court of developments in the underlying litigation” challenging the Clean Power Plan. The organizations indicated that D.C. Circuit judges had suggested that litigants had a continuing duty to keep the Supreme Court—which stayed the Clean Power Plan in February 2016—informed of “any development which may conceivably affect the outcome.” The organizations informed the Court that the litigation had been held in abeyance since the D.C. Circuit granted EPA’s March 2017 abeyance request. They asserted that “contrary to the premise” of the Court’s stay orders, “the litigation has come to a protracted standstill with the support of the parties that sought a stay in this Court.” The organizations indicated that “the Court may wish to require the parties to explain why the stay should continue in effect.” 02/09/2016 Order Download Supreme Court stayed implementation of the Clean Power Plan. Supreme Court Stayed Clean Power Plan. In five identical half-page orders, the United States Supreme Court granted five applications requesting that it stay implementation of the Clean Power Plan, which regulates carbon emissions from existing power plants. The orders indicated that Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to deny the applications. A blog post by Sabin Center Director Michael Gerrard about the stay is available here. 02/05/2016 Brief Download Reply brief filed in support of application for immediate stay. 01/26/2016 Application Download Application for immediate stay filed with the Supreme Court. -
Basin Electric Power Cooperative v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 02/09/2016 Order Download Supreme Court stayed implementation of Clean Power Plan. 02/05/2016 Brief Download Reply brief filed in support of application for immediate stay. 01/27/2016 Application Download Application for immediate stay filed with Supreme Court. -
Chamber of Commerce v. EPA
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Murray Energy Corp. v. EPA
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North Dakota v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 02/09/2016 Order Download Supreme Court stayed implementation of Clean Power Plan. 02/08/2016 Brief Download Reply brief filed in support of application for immediate stay. 01/29/2016 Application Download Application for immediate stay filed with the Supreme Court. -
North Dakota v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 09/17/2019 Order Download Motion to dismiss as moot granted. 07/23/2019 Motion to Dismiss Download Motion filed by petitioners for dismissal of petitions for review as moot. 04/24/2017 Reply Download Reply filed by North Dakota in support of motion to sever and consolidate. 04/17/2017 Opposition Download Opposition filed by state and municipal respondent-intervenors to North Dakota's motion to sever and consolidate. 04/12/2017 Reply Download Reply in support of EPA's motion to hold cases in abeyance. 01/27/2017 Motion to Intervene Download Motion filed for leave to intervene as respondents. On January 27, 2017, a group of 17 states and seven municipalities moved to intervene as respondents. 01/17/2017 Petition for Review Download Petition for review filed. Clean Power Plan Opponents Launched Challenges to EPA’s Denial of Requests for Reconsideration. Twenty states and state agencies, as well as utilities, utility trade groups, the National Association of Home Builders, and the coal company Murray Energy Corporation, filed petitions for review in the D.C. Circuit of Appeals to challenge EPA’s denial of petitions for reconsideration of the Clean Power Plan regulations. Notice of EPA’s denial of the petitions was published in the January 17, 2017 issue of the Federal Register. The petitioners said that they would show that the final regulations were in excess of EPA’s authority and were arbitrary, capricious, an abuse of discretion, and not in accordance with law. The petitions filed under docket numbers 17-1014, 17-1015, 17-1018, 17-1019, 17-1020, 17-1022, 17-1023, 17-1031, 17-1035, 17-1037, 17-1061, 17-1062, 17-1063, 17-1068, 17-1081, 17-1091, 17-1092 were consolidated in a single proceeding with the original challenges to the Clean Power Plan (Nos. 15-1363 et al.). -
West Virginia v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 01/23/2017 Petition for Review Download Petition for review filed. -
American Forest & Paper Association, Inc. v. EPA
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Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 12/22/2015 Petition for Review Download Petition for review filed. -
NorthWestern Corp., d/b/a NorthWestern Energy v. EPA
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Indiana Utility Group v. EPA
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Filing Date Type File Action Taken Summary 12/14/2015 Petition for Review Download Petition for review filed. -
Biogenic CO2 Coalition v. EPA
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Filing Date Type File Action Taken Summary 01/04/2016 Motion Download Motion filed requesting that issues related to biogenic emissions be severed and held in abeyance. The petitioner Biogenic CO2 Coalition, which filed its petition for review on December 22, asked the D.C. Circuit not to consolidate its petition with the other proceedings challenging the Clean Power Plan, or that the court sever and hold in abeyance the issues raised in its appeal concerning the regulation of “biogenic carbon dioxide emissions” to permit the petitioner to continue ongoing discussions to achieve an administrative resolution of its concerns. Two other organizations also filed petitions for review on December 22 that made similar requests with respect to issues relating to biogenic emissions. 12/22/2015 Petition Download Petition for review filed. -
International Brotherhood of Boilermakers v. EPA
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Competitive Enterprise Institute v. EPA
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Filing Date Type File Action Taken Summary 12/22/2015 Petition for Review Download Petition for review filed. -
Denbury Onshore, LLC v. EPA
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Filing Date Type File Action Taken Summary 12/21/2015 Petition for Review Download Petition for review filed. -
Genon Mid-Atlantic, LLC v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 12/18/2015 Petition for Review Download Petition for review filed. -
Kansas City Board of Public Utilities- Unified Government of Wyandotte County/Kansas City, Kansas v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 12/08/2015 Petition for Review Download Petition for review filed. -
Local Government Coalition for Renewable Energy v. EPA
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Filing Date Type File Action Taken Summary 12/22/2015 Petition for Review Download Petition for review filed. -
Louisiana Public Service Commission v. EPA
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Filing Date Type File Action Taken Summary 12/18/2015 Petition for Review Download Petition for review filed. -
Minnesota Power v. EPA
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Filing Date Type File Action Taken Summary 12/21/2015 Petition for Review Download Petition for review filed. -
Mississippi Department of Environmental Quality v. EPA
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National Alliance of Forest Owners v. EPA
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Filing Date Type File Action Taken Summary 12/22/2015 Petition for Review Download Petition for review filed. -
National Rural Electric Association v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 01/04/2016 Amicus Motion Download Pedernales Electric Cooperative, Inc. sought to file amicus curiae brief in support of the National Rural Electric Association and its co-petitioners. 12/18/2015 Statement of Issues Download Statement of issues filed. 12/18/2015 Statement of Issues Download Petitioner Western Farmers ElectricCooperative filed a statement of issues. 10/23/2015 Petition for Review Download Petition for review filed. -
North American Coal Corp. v. EPA
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Filing Date Type File Action Taken Summary 12/14/2015 Petition for Review Download Petition for review filed. -
Prairie State Generating Co., LLC v. EPA
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Filing Date Type File Action Taken Summary 12/21/2015 Petition for Review Download Petition for review filed. -
American Coalition for Clean Coal Electricity v. EPA
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Alabama Power Co. v. EPA
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Association of American Railroads v. EPA
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Basin Electric Power Cooperative v. EPA
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CO2 Task Force of the Florida Electric Power Coordinating Group, Inc. v. EPA
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Energy & Environment Legal Institute v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 02/19/2016 Brief Download EELI filed supplement to petitioners' opening brief to address procedural and record-based issues. 12/18/2015 Statement of Issues Download Statement of issues filed. 10/30/2015 Petition for Review Download Petition for review filed. -
Entergy Corp. v. EPA
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International Brotherhood of Electrical Workers v. EPA
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LG&E and KU Energy LLC v. EPA
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Luminant Generation Co. LLC v. EPA
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Murray Energy Corp. v. EPA
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National Association of Home Builders v. EPA
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North Dakota v. EPA
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Newmont Nevada Energy Investment LLC v. EPA
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National Mining Association v. EPA
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Oklahoma v. EPA
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Utility Air Regulatory Group v. EPA
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United Mine Workers of America v. EPA
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Chamber of Commerce of the United States of America v. EPA
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West Virginia Coal Association v. EPA
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Westar Energy, Inc. v. EPA
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Montana-Dakota Utilities Co. v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 10/23/2015 Petition for Review Download Petition for review filed. -
Tri-State Generation & Transmission Association, Inc. v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 10/23/2015 Petition for Review Download Petition for review filed.