Clean Power Plan Moves Forward

BREAKING: DC Circ. Won't Delay EPA's Clean Power Plan

Share us on:   By Keith Goldberg

Law360, New York (January 21, 2016, 4:06 PM ET) -- The D.C. Circuit on Thursday refused to put the Clean Power Plan on hold until legal challenges to the rule are completed, handing the Obama administration a significant early victory as it looks to defend and implement the sweeping regulations that would slash carbon emissions from existing power plants.

Dozens of states and industry groups have petitioned the appeals court to overturn the CPP crafted by the U.S. Environmental Protection Agency, or at the very least, block it from being implemented while the legal battle plays out. They've argued that they'll be irreparably harmed by starting the compliance process, even though they're likely to succeed in convincing the court that the rule is illegal.

However, a D.C. Circuit panel shot the request down in a two-page order, though it said the appeals court would expedite the consideration of the case and schedule oral arguments for June 2.

"Petitioners have not satisfied the stringent requirements for a stay pending court review," the panel said.

The CPP calls for existing power plants to slash their carbon emissions by 32 percent from 2005 levels by 2030. States must start submitting implementation plans by 2018 and start showing emissions reductions by 2022. Challengers of the rule claim the EPA doesn't have the authority under the Clean Air Act to craft the rule.

In their motions to stay, industry petitioners like coal giant Peabody Energy Corp. and Basin Electric Power Cooperative said that if the court doesn't push back the plan's effective date, they stand to lose a lot of money if they comply with the plan and it ends up being scrapped by the court. Peabody, which called the rule “a Draconian measure” that seeks to shut down coal-fired power plants, said that if compliance enforcement isn't stayed, those facilities could be lost even if the petitioners prevail.

In urging the D.C. Circuit to reject the bids for a stay, the federal government argued that the EPA has the CAA authority to implement the CPP and limit air pollution emitted by power plants and the movants do not face any irreparable harm during the “relatively short period” that the court reviews the new rules. Federal attorneys also warned that a stay could be harmful to the general public.

The government also noted that states are being given up to three years to come up with their own plans to implement the CPP and may elect to have the EPA do that work for them. And those in the energy industry also face no imminent harm because the rule builds upon pre-existing industry trends and doesn't obligate them to make any changes until 2022, followed by a gradual phase-in of emissions reductions until 2030.

Supporters of the CPP hailed the D.C. Circuit's ruling Thursday.

"Today’s court decision means we can continue working – without delay -- to protect Americans from the clear and present danger of climate change,” Environmental Defense Fund president Fred Krupp said in a statement. “The Clean Power Plan encourages states to use their own best ideas and resources to create prosperous clean energy economies. It rests on a rock-solid legal foundation and will help America move toward a safer and healthier future.”

Circuit Judges Karen LeCraft Henderson, Judith W. Rogers and Sri Srinivasan sat on the panel for the D.C. Circuit.

The state petitioners are represented by their respective attorney general offices.

The private petitioners are represented by Sidley Austin LLPHunton & Williams LLP and Troutman Sanders LLP, among others.

The federal government is represented by assistant U.S. attorney general John C. Cruden, as well as Eric G. Hostetler, Norman L. Rave Jr., Amanda S. Berman, Brian H. Lynk and Chloe H. Kolman of the U.S. Department of Justice.

The case is West Virginia et al. v. EPA, case number 15-1363 in the U.S. Court of Appeals for the District of Columbia Circuit.

--Additional reporting by Alex Wolf and John Kennedy
http://www.law360.com/articles/741160/dc-circ-won-t-delay-epa-s-clean-power-plan