Clean Power Plan – Strike One

Author: ABB EPM Advisors

So where does the CPP strike occur? The litigants below had asked the D. C. Circuit Court to issue a stay of the Existing Source Performance Standards (ESPS) on the grounds that the rule would result in “immediate, irreparable and unrecoverable” harm. In addition, they filed motions asking for expedited litigation of oral arguments.

STRIKE ONE – January 21, 2016 the Court rejected the motion for a stay on the grounds that the parties “have not satisfied the stringent requirements for a stay pending court review.” However, they did agree to the expedited litigation of oral arguments. So one could say EPA made it to first base; however, the ball game hasn’t reached the seventh inning stretch. The next pitch will be the oral arguments on June 2, 2016 and a couple of foul balls may be hit with filings to the Supreme Court. There is an expectation that this game may go into extra innings and be litigated beyond the CPP State Implementation Plan final submission deadline of September 6, 2018.

Instant Replay: In August 2015, EPA released the final Carbon Pollution Standards for existing, new, modified, and reconstructed power plants. The final regulations were published in the Federal Register on October 23, 2015 opening the window for states, companies and organizations to file challenges in the courts and get onto the ball field. The CPP is on target for being the most contentious environmental litigation with 27 states filing lawsuits. As shown below, nearly every state in the union has weighed in either for or against the regulations.

CPP Strike One_2

As the suits filed in, the D. C. Circuit Court on October 26, 2015 consolidated the suits into West Virginia, et al. v. EPA et al. In additions the states above several industry groups were also included: National Mining Association, American Coalition for Clean Coal Electricity, American Wood Council and the American Forest & Paper Association, National Rural Electric Cooperative Association, U.S. Chamber of Commerce, National Federal of Independent Businesses, Murray Energy. National Association of Manufacturers, American Fuel and Petrochemical Manufacturers, National Federation of Independent Business, American Chemistry Council, American Coke and Coal Chemicals Institute, American Foundry Society, American Forest and Paper Association, American Iron and Steel Institute, American Wood Council, Brick Industry Association, Electricity Consumers Resource Council, Lignite Energy Council, National Lime Association, National Oilseed Processors Association and Portland Cement Association.

Back to live play: In addition, 24 states are challenging the New Source Performance Standards (NSPS). These complaints have been consolidated in State of North Dakota, et al. v. EPA, et al. There are 31 parties, including 16 states, which have intervened in support of EPA. The NSPS must be implemented prior to ESPS. The same D. C. Circuit Court judges ruled on January 21 denying the request for a delay in the briefing of the NSPS until after the ESPS briefing is complete. Briefing proposals are due February 21 – 2nd inning.

Happy not to be the umpire in this ballgame and just a commentator in the booth.

ABB EPM Advisors