Court Again Dismisses Clean Power Plan Challenges As Premature

The U.S. Court of Appeals for the District of Columbia Circuit has rejected two lawsuits brought by 15 states and Peabody Energy Corp., which seek to block the EPA’s Clean Power Plan.  The lawsuits are In re West Virginia, D.C. Cir., No. 15-1277; In re Peabody Energy Corp., D.C. Cir., No. 15-1284. The final Clean Power Plan has not yet been issued, and EPA expects that it will be published in late October. The petitioners requested that the Court issue an extraordinary writ under the All Writs Act to block the final Clean Power Plan, arguing that the rule is illegal on its face.  The Court ruled that the petitioners had not met the stringent standards under the All Writs Act. Generally, a rule may not be challenged before the agency publishes the final rule. EPA argued that the All Writs Act did not allow the Court to intervene prior to publication of the final rule and act as a substitute for normal judicial review.  This is the second time that the D.C. Circuit dismissed challenges to the Clean Power Plan as premature. The prior challenge is In re Murray Energy Corp., 788 F.3d 330, 2015 BL 180996, D.C. Cir., 2015.

The Clean Power Plan sets carbon dioxide emissions levels unique to each state, and requires state regulators to develop plans to meet the targets.  States have expressed concerns that meeting the Clean Power Plan’s requirement to immediately design an implementation plan will be costly and onerous.  Some states have voiced concerns over their particular emissions target.  EPA contends that the Clean Power Plan considers each state’s energy mix, and will reduce carbon dioxide emissions by power plants by 32% from 2005 levels by 2030.

For more information, please contact Phillip Hoover or Jennifer Bellis.

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