EPA Expects to Publish Clean Power Plan in October

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By Andrew Childers

Sept. 1 — The Environmental Protection Agency anticipates publishing its final Clean Power Plan in the Federal Register by “late October,” it told a federal appellate court.

The EPA told the U.S. Court of Appeals for the District of Columbia Circuit on Aug. 31 that early challenges to the Clean Power Plan should be rejected, because the states suing over the rule cannot demonstrate any significant harms they will incur by waiting for the rule to be published in the Federal Register, which typically opens the window for litigation.

The EPA also argued the court lacks the authority under the All Writs Act to block implementation of the carbon dioxide standards for power plants until the rule is formally published.

“That statutory window for review should open in less than two months, but it has not opened yet,” the EPA said in its response opposing an extraordinary writ sought by 15 states. “The court consequently lacks jurisdiction and the writ is unavailable. Indeed, were this court to issue an extraordinary writ here, it would be breaking new ground and opening the floodgates for pre-publication challenges to any number of future agency actions.”

Fifteen states, led by West Virginia, have asked the court to issue an extraordinary writ under the All Writs Act to block implementation of the Clean Power Plan, arguing the rule is illegal on its face. Those challenges have been consolidated with a similar lawsuit brought by Peabody Energy Corp. that also seeks to block the rule before it is published in the Federal Register.

Released Aug. 3, the final Clean Power Plan (RIN 2060-AR33) sets unique carbon dioxide emissions rates or alternatively mass-based targets for the power sector in each state. State regulators will be tasked with developing plans to meet the targets, which will be phased in through 2030.

Michigan officials said the state will develop a plan to comply with the carbon dioxide standards despite Attorney General Bill Schuette (R) joining the lawsuit to block the rule (see related story).

Court Previously Rejected Writ 

The EPA said the states are seeking the same action the D.C. Circuit has already rejected as premature. The court previously denied states and industry groups' petition to block the Clean Power Plan as premature, because the final rule had not yet been issued by the EPA (In re Murray Energy Corp., 788 F.3d 3302015 BL 180996, D.C. Cir., 2015).

“Petitioners’ arguments here are also squarely foreclosed by Murray,” the EPA said. “In Murray, the court reasoned that the All Writs Act does not give it authority to ‘jump into the fray' in advance of the routine judicial review afforded by these authorities where doing so would allow the All Writs Act ‘to be used as a substitute' for normal appellate review... or would authorize courts ‘to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate.' ”

Sean Donahue, an attorney at Donahue & Goldberg LLP representing environmental groups supporting the EPA in the litigation, told Bloomberg BNA that the states' lawsuit seeks to circumvent the Clean Air Act's procedures for challenging air pollution regulations. Environmental groups filed their own response opposing the states' request Aug. 31.

“It’s really important there be a clear rule for when you can sue,” Donahue said.

To contact the reporter on this story: Andrew Childers in Washington at achilders@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

The EPA's response is available at http://www.bloomberglaw.com/public/document/In_re_State_of_West_Virginia_et_al_Docket_No_1501277_DC_Cir_Aug_1/4.

Environmental groups' response is available at http://www.bloomberglaw.com/public/document/In_re_State_of_West_Virginia_et_al_Docket_No_1501277_DC_Cir_Aug_1/5.