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By Andrew Childers
Dec. 21 — The Environmental Protection Agency is opposed to expedited judicial review of its Clean Power Plan as bids to block the agency's carbon dioxide rules return to the courts following President Barack Obama's veto of congressional resolutions meant to scuttle the rules.
Dec. 22 is the deadline to file challenges to the EPA's Clean Power Plan as well as to the carbon dioxide new source performance standards for new and modified power plants, and the agency told the U.S. Court of Appeals for the District of Columbia Circuit that it opposes a motion from industry and state petitioners seeking to accelerate judicial review (West Virginia v. EPA, D.C. Cir., No. 15-1363, response filed 12/21/15).
“There is no sound reason for the court to entertain such a motion at this stage of the case, and the procedure suggested by petitioners would be counterproductive, unworkable, and prejudicial to respondents,” the EPA said in a Dec. 21 response.
Opponents of the Clean Power Plan have asked the D.C. Circuit to address the core legal questions about the EPA's fundamental legal authority to even issue the rule, setting aside challenges to implementing the rule for future litigation. The petitioners have asked the court to set an expedited briefing schedule that could see the case argued by May 2016 (See previous story, 12/10/15).
The EPA argued that expedited review of the Clean Power Plan (RIN 2060-AR33), which sets carbon dioxide emissions limits for the power sector in each state that would then be implemented by state regulators, is premature because the D.C. Circuit has not yet addressed motions seeking to have the rule stayed. The Clean Power Plan faces a barrage of legal challenges brought by 27 states and several utility and industry groups.
“Moreover, the inefficient divided briefing format proposed by petitioners would seriously impede the orderly consideration of this case,” the EPA said. “It could substantially delay ultimate resolution (and thus the certainty petitioners claim they are seeking) by requiring two potentially duplicative rounds of briefing and multiple oral arguments in proceedings involving challenges to the same agency rule. It would introduce confusion about which of the overlapping issues are actually before the court during each round of briefing.”
The EPA is also facing challenges to its new source performance standards (RIN 2060-AQ91), which effectively require the partial use of carbon capture and storage technologies to meet emissions limits. Opponents of the rule say they plan to argue the carbon capture systems required have not been adequately demonstrated as required by the Clean Air Act (North Dakota v. EPA, D.C. Cir., No. 15-1381, statement of issues filed 11/27/15).
Though fewer challenges have been filed to the new source standards than for the Clean Power Plan, attorneys said additional lawsuits are expected before the Dec. 22 deadline.
Additionally, Dec. 22 is the deadline for administrative petitions to the EPA seeking reconsideration of the rules.
“I expect you'll see the bulk of those rolling in today and tomorrow,” Thomas Lorenzen, a partner at Crowell & Moring LLP representing the National Rural Electric Cooperative Association, told Bloomberg BNA Dec. 21.
The legal challenges to the rule will be the key avenue of attack after Obama on Dec. 18 vetoed two congressional resolutions that would have overturned the Clean Power Plan and the new power plant standards.
“Because it would overturn carbon pollution standards that are critical to protecting against climate change and ensuring the health and well-being of our nation, I cannot support the resolution,” Obama said in a Dec. 18 memorandum of disapproval issued with the veto.
The two resolutions (S.J. Res 23; S.J. Res. 24) passed the House Dec. 1 by large majorities but well short of the two-thirds margin they would need to override Obama's veto (See previous story, 12/02/15).
While Congress is expected to hold several oversight hearings on the rule, it is unlikely to block the Clean Power Plan legislatively after the Congressional Review Act resolutions failed, attorneys said.
“It's still possible there could be an effort to push back deadlines, give people more time. But that depends on what happens in the next year” with the lawsuits, Jeffrey Holmstead, a partner at Bracewell & Giuliani LLP representing the American Coalition for Clean Coal Electricity in the litigation, told Bloomberg BNA Dec. 21.
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