West Virginia v. EPA

On July 27, 2018, public health and environmental organizations who intervened to defend the Clean Power Plan submitted a letter to Chief Justice John Roberts “to notify the Court of developments in the underlying litigation” challenging the Clean Power Plan. The organizations indicated that D.C. Circuit judges had suggested that litigants had a continuing duty to keep the Supreme Court—which stayed the Clean Power Plan in February 2016—informed of “any development which may conceivably affect the outcome.” The organizations informed the Court that the litigation had been held in abeyance since the D.C. Circuit granted EPA’s March 2017 abeyance request. They asserted that “contrary to the premise” of the Court’s stay orders, “the litigation has come to a protracted standstill with the support of the parties that sought a stay in this Court.” The organizations indicated that “the Court may wish to require the parties to explain why the stay should continue in effect.”

In five identical half-page orders, the United States Supreme Court granted five applications requesting that it stay implementation of the Clean Power Plan, which regulates carbon emissions from existing power plants. The orders indicated that Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to deny the applications. A blog post by Sabin Center Director Michael Gerrard about the stay is available <a href="http://blogs.law.columbia.edu/climatechange/2016/02/10/the-supreme-court-stay-of-the-clean-power-plan-and-the-paris-pledges/">here</a>.

The petitioner Biogenic CO2 Coalition, which filed its petition for review on December 22, asked the D.C. Circuit not to consolidate its petition with the other proceedings challenging the Clean Power Plan, or that the court sever and hold in abeyance the issues raised in its appeal concerning the regulation of “biogenic carbon dioxide emissions” to permit the petitioner to continue ongoing discussions to achieve an administrative resolution of its concerns. Two other organizations also filed petitions for review on December 22 that made similar requests with respect to issues relating to biogenic emissions.

The D.C. Circuit Court of Appeals granted motions seeking to dismiss as moot the proceedings challenging the Obama administration’s Clean Power Plan, which established emission guidelines for greenhouse gases from existing power plants. The court dismissed the proceedings 11 days after the effective date of the U.S. Environmental Protection Agency (EPA) rule repealing the Clean Power Plan and finalizing the final Affordable Clean Energy rule in its place.