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The Courts Move at Lightning Speed Toward a Decision on the EPA's Clean Power Plan

By Aaron M. Flynn – June 7, 2016


Litigation over the Clean Power Plan of the U.S. Environmental Protection Agency (EPA) has proceeded at a fevered pitch since petitions for review before the D.C. Circuit were filed beginning on October 23, 2015, the day the rule was published in the Federal Register. The agency’s controversial effort to regulate carbon dioxide emissions from existing power plants ultimately generated 42 petitions for review filed by 159 petitioners. Petitioners include 32 states and state agencies and a broad array of American industry, including notable representation of the electric utility industry, mining interests, labor, and manufacturing. The D.C. Circuit consolidated all of these petitions for review, although three petitions were later severed and placed in abeyance to allow the EPA time to reconsider particular issues related to the combustion of biomass.


The litigation also attracted 7 intervenors supporting petitioners and 52 intervenors­—composed primarily of states, cities, and environmental organizations—filing briefs in support of the EPA, as well as 418 amici for petitioners and 401 amici for respondents, representing a wide range of current and former federal officials, climate scientists, and various advocacy organizations, among others, who also filed briefs in the cases. Despite the enormous number of parties, briefing in these cases—which began on February 19, 2016, with the filing of opening briefs by the petitioners—was completed just under two months later, when reply briefs were filed on April 15, 2016. Given the number of parties and the number of issues to be addressed, the efforts expended over this compressed period are, if not unprecedented, then at least highly unusual in the area of federal environmental law.


Clearly unprecedented action occurred before principal briefing in these cases even began. Motions to stay the Clean Power Plan pending judicial review were filed by the petitioner states, led by West Virginia and Texas; electric utilities; coal interest groups; and business interest groups on October 23, 2015, the first day petitions for review could be filed. Those stay motions were supported by hundreds of pages of declarations explaining the harmful impacts of the EPA’s final rule, and, as new petitioners joined the litigation, additional stay motions were filed with the court. Ultimately, 109 of the petitioners and petitioner-intervenors joined in one of nine stay motions or filed statements of support for motions filed by others by the November 5, 2015, deadline, and briefing of the stay motions was completed on December 23, 2015. On January 21, 2016, the D.C. Circuit denied the stay motions in a short per curiam opinion that gave no insight into the court’s reasoning.


Just a few days later, on January 26, 2016, 29 states and state agencies filed an emergency stay application with Chief Justice Roberts asking for a stay of the Clean Power Plan. The next day, Chief Justice Roberts asked the EPA to respond to that application. Similar applications were filed by the utility parties, business associations parties, and the coal industry parties on January 27, 2016, and by North Dakota on January 29, 2016. The EPA filed its response to the application on February 4, 2016, and addressed all of the stay applications. One day later, the stay applicants filed replies to the EPA’s response. Five days later, on February 9, 2016, the Supreme Court took the unprecedented step of issuing a stay of agency rule pending judicial review. The Court’s orders as to the five applications specify that the stay will remain in effect not only through litigation of the rule in the D.C. Circuit but also until a determination is made by the Court to deny any petitions for writs of certiorari that are filed, or after a judgment is issued by the Court if the Court grants certiorari. The orders indicated that Justices Ginsburg, Breyer, Kagan, and Sotomayor would have denied the applications. The issuance of the stay was a significant victory for the petitioners and also had profound implications throughout the nation, as many states had already begun taking steps to develop the complex programs needed to implement the Clean Power Plan. The stay put a halt to those actions in many places and has left the EPA unable to move forward with its plans for implementing the rule.


On February 19, 2016, under the D.C. Circuit’s expedited schedule for briefing these cases, and shortly after the Supreme Court issued its stay, the petitioners filed their opening briefs. The petitioners filed two briefs: one addressing “core legal issues” and the other addressing “procedural and record-based issues.” The core legal issues brief included arguments that the EPA was relying on a Clean Air Act provision that did not provide clear congressional authorization for the transformative expansion of regulatory authority and intrusion into areas of traditional state control that the EPA had claimed in promulgating the Clean Power Plan. It also argued that the rule violates fundamental requirements of Clean Air Act section 111(d), the provision the EPA claims is its authority to promulgate the rule, such as that provision’s requirement that a 111(d) standard apply only to the regulated sources themselves and that the standard be achievable through means other than nonperformance by those sources. The core legal issues brief also included arguments that section 112 of the Clean Air Act forecloses regulation of existing power plant emissions under section 111(d), that the EPA had improperly usurped the states’ decision-making role under section 111(d), and that the Clean Power Plan violates the Constitution’s anti-commandeering doctrine.


In their procedural and record-based issues brief, the petitioners argued, among other things, that the EPA had improperly obstructed meaningful public comment by departing radically from its proposed rule when promulgating the final Clean Power Plan. The brief also argued that the EPA had not adequately demonstrated the feasibility of the “building blocks,” i.e., the measures the EPA relied on to develop its emission rate standards; that the EPA had improperly discriminated against some sources of low- or zero-emitting generation; and that the EPA had arbitrarily failed to consider state-specific factors when evaluating whether compliance with the Clean Power Plan would be possible.


The EPA filed its brief on March 28, 2016. As expected, the agency argued that it properly applied the factors provided in section 111(d) in developing the Clean Power Plan and in identifying the “best system of emission reduction” for carbon dioxide emissions from existing power plants, in particular, defending its reliance on the interconnected nature of the electrical grid as a reasonable approach to identifying potential emission reductions. The EPA also argued that section 112 of the Clean Air Act does not bar regulation of existing power plants under section 111(d) because the text of section 112 is ambiguous and subject to EPA interpretation, that the Clean Power Plan does not unlawfully commandeer state governments, and that the rule was promulgated using proper procedures and based on adequate record evidence. Respondent-intervenor briefs filed by numerous parties the following day supported and expanded on the EPA’s arguments. The petitioners filed their reply briefs on April 15, 2016.


In the D.C. Circuit’s January 21, 2016, order directing expedited briefing in these cases, the court also scheduled oral argument for June 2, 2016, and ordered the parties to reserve June 3, 2016, in the event that argument could not be concluded in one day. In accordance with a March 28, 2016, letter, the parties filed oral argument proposals on April 28, 2016. The petitioners and petitioner-intervenors proposed argument over two days, with 2 hours and 20 minutes on day one and 2 hours and 40 minutes on day two. The first day would be devoted to core legal issues and the second day primarily to the procedural and record-based issues. The EPA and the respondent-intervenors filed a separate proposal asking the court to divide the issues into five phases with a total of 3 hours and 10 minutes for argument.


As with everything else in this litigation, the length of the proposed oral argument sessions and the competing visions as to how to choreograph the parties’ arguments underscore the enormous complexity of the case and the stakes for the litigants. Whether and how the D.C. Circuit will take into account the Supreme Court’s stay of the rule and the uncertainty over the future direction of the Supreme Court introduce previously unforeseeable variables into how these cases will be argued and decided. If the D.C. Circuit keeps to its current pace, however, we are almost certain to have a decision of monumental importance to the field of environmental law in what could be record time.


Keywords: environmental litigation, Clean Power Plan, D.C. Circuit, Supreme Court, stay


Aaron M. Flynn is a partner with Hunton & Williams LLP in its Washington, D.C., office.


 
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