The U.S. Court of Appeals for the District of Columbia has denied an emergency motion from 15 states to consolidate their lawsuit challenging the EPA’s Clean Power Plan with other pending appeals challenging the EPA’s carbon dioxide standards. The states, which include Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, West Virginia, Wisconsin and Wyoming, will still be able to pursue their lawsuit that seeks a stay to block implementation of the carbon dioxide emissions standards. The states sought an extraordinary writ to halt implementation of the Clean Power Plan before the rule is published in the Federal Register because it imposes an immediate requirement on state regulators to develop a compliance plan. The states wanted the same panel that reviewed prior challenges to the Clean Power Plan to review their request for a stay. Those challenges were dismissed because the rule was not yet final. The states argued that considerations of judicial efficiency strongly weighed in favor of the consolidation of their request for a stay with the requests for reconsideration, so that a new panel would not have to familiarize itself with the Clean Power Plan and the states’ arguments. This panel is also viewed as being skeptical of EPA’s authority to implement these rules.
For more information, contact Phillip Hoover or Jennifer Bellis.