West Virginia v. EPA

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.

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After EPA published a final rule repealing the Clean Power Plan and finalizing new greenhouse gas emission guidelines for coal-fired power plants, petitioners in the proceedings challenging the Clean Power Plan asked the D.C. Circuit Court of Appeals to dismiss those proceedings as moot. EPA filed responses supporting dismissal. States and public health and environmental organizations that intervened to defend the Clean Power Plan opposed dismissal as premature because the new rule does not take effect until September 6. The respondent-intervenors asked the court to deny the motions or hold them in abeyance. The respondent-intervenors also noted that a challenge to the repeal and replacement rule had already been filed and that more petitioners for review were anticipated. The respondent-intervenors reserved their rights to object to the revival of the petitioners’ claims in this case should those proceedings result in the D.C. Circuit vacating the repeal of the Clean Power Plan.

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On June 20, 2019, the U.S. Environmental Protection Agency (EPA) notified the D.C. Circuit that EPA Administrator Andrew Wheeler had signed a final rule repealing the Clean Power Plan and instituting new emission guidelines for existing power plants. EPA recommended that the court continue to hold the pending challenges to the Clean Power Plan in abeyance.

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On April 5, 2019, the D.C. Circuit Court of Appeals granted EPA’s request to continue holding the cases challenging the Obama administration’s Clean Power Plan in abeyance while EPA considers a potential replacement rule to address carbon dioxide emissions from existing power plants. The court ordered that the cases be held in abeyance for 60 more days, with status reports to be filed by EPA at 30-day intervals. On April 26, 2019, EPA submitted its final replacement rule—which the proposed rule called the “Affordable Clean Energy Rule”—to the Office of Management and Budget (OMB) for review.

Respondent-intervenors opposed EPA's request that the court continue to hold the case in abeyance but asked, in the alternative, that the abeyance period be limited to no more than 60 days with a requirement for status reports every 30 days.

In a status report filed with the D.C. Circuit on March 11, 2019, EPA indicated that the government shutdown had delayed its work on reviewing the public comments on the Affordable Clean Energy Rule (ACE Rule) that EPA has proposed as a replacement for the Obama administration’s Clean Power Plan to regulate carbon emissions from existing power plants. EPA said it intended and expected that it would be in a position to take final action on the ACE Rule proposal in the second quarter of 2019. EPA requested that the court continue to hold the cases challenging the Clean Power Plan in abeyance pending the conclusion of rulemaking.

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The D.C. Circuit granted motions by Michigan and Colorado to withdraw as petitioners in the case challenging the Clean Power Plan. Both states sought to withdraw after newly elected attorneys general took office. Democrat Dana Nessel was elected attorney general for Michigan, replacing Republican Bill Schuette. In Colorado, Democrat Phil Weiser replaced Republican Cynthia Coffman as attorney general.

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The D.C. Circuit granted EPA an extension for the filing of its January 2019 status report due to the partial government shutdown. The court directed EPA to file the report within 14 days of the restoration of appropriations and the Department of Justice’s resumption of usual civil litigation functions.

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In the U.S. Environmental Protection Agency’s (EPA’s) 30-day status report to the court, filed on December 21, 2018, EPA said its “intention and expectation remains that the Agency will be in a position to take final rulemaking action in the Spring of 2019” on its proposed “Affordable Clean Energy Rule,” for which the comment period closed on October 31, 2018.

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On November 21, 2018, EPA filed a status report in the still-pending challenges to the Clean Power Plan in the D.C. Circuit Court of Appeals. The court has held the cases in abeyance since April 28, 2017. In September 2018, intervenors defending the Clean Power Plan asked the D.C. Circuit to discontinue the abeyance and decide the merits of the case. In the November status report, EPA told the court it intended and expected to take final rulemaking action on a replacement rule for the Clean Power Plan “by the first part of 2019.” EPA said the court should continue to hold the cases in abeyance pending the conclusion of the rulemaking.

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North Dakota filed a separate status report in support of continued abeyance, asserting that it would suffer unique harms if the court removed the abeyance because it was the principal proponent of an argument that the Clean Power Plan violated the Clean Air Act’s delegation to the states of authority to establish emission rate performance standards for existing power plants. North Dakota said that as a major lignite-producing coal state, it was disproportionately impacted by this “usurpation” of state authority and that its arguments on this issue “have not been emphasized by other petitioners” and “could potentially be lost if the case is remanded to the EPA.”

After EPA Acting Administrator Andrew Wheeler signed a proposed rule to replace the Clean Power Plan regulations with the “Affordable Clean Energy Rule,” EPA filed a status report in the D.C. Circuit asking that the cases challenging the Clean Power Plan “continue to be held in abeyance pending the conclusion of this high priority rulemaking.” EPA said it was committed to completing the rulemaking “as expeditiously as practicable.”

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On July 26, EPA submitted a status report to the D.C. Circuit indicating that it had completed its review of public comments received on the advance notice of proposed rulemaking for a replacement for the Clean Power Plan and had submitted its proposed rule to the Office of Management and Budget (OMB) on July 9. EPA said the cases should remain in abeyance pending the conclusion of this “high priority” rulemaking.

On June 26, 2018, the D.C. Circuit Court of Appeals ordered that the proceedings challenging the Clean Power Plan remain in abeyance for 60 more days. Two judges wrote statements, both of which were joined by a third judge, indicating a disinclination to approve future abeyances. Judge Wilkins wrote that the petitioners challenging the Clean Power Plan and EPA had “hijacked” the court’s equitable powers for the purposes of maintaining the status quo while EPA decides the disposition of the Clean Power Plan. Judge Wilkins, joined by Judge Millett, said that if EPA or the petitioners wished to further delay operation of the Clean Power Plan, “then they should avail themselves of whatever authority Congress gave them to do so, rather than availing themselves of the Court’s authority under the guise of preserving jurisdiction over moribund petitions.” Judge Tatel, also joined by Judge Millett, wrote that “the untenable status quo derives in large part from petitioners’ and EPA’s treatment of the Supreme Court’s order staying implementation of the Clean Power Plan pending judicial resolution of petitioners’ legal challenges as indefinite license for EPA to delay compliance with its obligation under the Clean Air Act to regulate greenhouse gases.” Judge Tatel suggested that the parties had an obligation to advise the Supreme Court of the “circumstances as they stand today” so that the Court may “decide for itself whether the temporary stay it granted pending judicial assessment of the Clean Power Plan ought to continue now that it is being used to maintain the status quo pending agency action.”

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Two weeks after the inauguration of Democrat Phil Murphy as governor, New Jersey filed a motion to withdraw as a petitioner in the challenge to the Clean Power Plan.

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The state and municipal respondent-intervenors and public health and environmental respondent-intervenors asked the court to reject the request for indefinite abeyance. They urged the court to issue its decision on the merits of the case or, if it decided to continue abeyance, to limit the abeyance to a 60-day period and to require EPA to provide regular status reports.

On January 10, 2018, the U.S. Environmental Protection Agency (EPA) filed a 30-day status report in the D.C. Circuit requesting that the court continue to hold the case challenging the Clean Power Plan in abeyance pending the conclusion of EPA rulemaking. EPA stated that the public comment period on its proposal to repeal the Clean Power Plan had closed on January 16 and that it had issued an advance notice of proposed rulemaking soliciting information on potential replacements in December.

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States and public health and environmental organizations that intervened as respondents in the cases opposed the continued abeyance. The public health and environmental organizations argued that EPA had not satisfied the requirements for abeyance and that the court should decide the fully briefed and argued matter because “the case involves a time-sensitive statutory obligation to protect the public health and welfare from grave threats.” The organizations argued that “[t]he impacts of climate change are increasingly evident and dire” and that the “unaddressed threats” and EPA’s “unmet statutory duties” counseled against the court exercising its discretion in a way that would cause further delay. The states similarly argued that continued abeyance would be inappropriate because EPA had not proposed an alternative way to reduce greenhouse gas emissions from existing power plants and a “pure repeal … would put the agency in violation of its statutory duty to regulate carbon dioxide from existing power plants under the Clean Air Act, a duty the agency is not contesting it must fulfill.” Both sets of intervenors also said the court should limit any abeyance period to 120 days.

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On the same day that EPA Administrator Scott Pruitt signed a proposal to repeal the Clean Power Plan, EPA asked the D.C. Circuit Court of Appeals to continue to hold the cases challenging the Clean Power Plan in abeyance pending the conclusion of rulemaking.

In a status report filed in the D.C. Circuit Court of Appeals on September 7, 2017 in the proceedings challenging the Clean Power Plan, EPA indicated that its review of the Clean Power Plan had inadvertently been classified as a “long term action” rather than as in the “proposed rule stage” in the Office of Information and Regulatory Affairs’ unified regulatory agenda. EPA requested that the D.C. Circuit continue to hold the proceedings in abeyance. EPA said its review should have been classified as in the “proposed rule stage” because it expected the EPA Administrator to sign a proposed rule in the fall of 2017. EPA said OIRA was currently reviewing the draft proposed rule.

The D.C. Circuit ordered—on its own motion—that challenges to the Clean Power Plan continue to be held in abeyance for 60 more days and that EPA continue filing status reports at 30-day intervals.

Public health and environmental organizations that had intervened as respondents asked the court to decide the case on the merits or terminate it by remanding the case to EPA. They said EPA’s classification of its Clean Power Plan review as a “Long Term Action” in the Trump administration’s Current Unified Agenda of Regulatory and Deregulatory Actions indicated a proposed rule might be delayed for at least another year.

In a status report submitted on May 30, 2017, EPA indicated that it “may be prepared to begin the interagency review process of a … proposed regulatory action in the near future” and that the cases should remain in abeyance pending the conclusion of EPA’s review and any resulting rulemaking.

In a supplemental brief, EPA urged the D.C. Circuit Court of Appeals to continue to hold challenges to the Clean Power Plan in abeyance while it reviewed the regulations and considered its next steps.

The petitioners and petitioner-intervenors supported EPA’s view that the cases should be held in abeyance, arguing that doing so would best protect their rights to judicial review and the court’s ability to resolve challenges to the Clean Power Plan if EPA decided not to revise or rescind the rule. The petitioners and petitioner-intervenors also argued that holding the cases in abeyance would be consistent with the D.C. Circuit’s established practices, while remand would jeopardize the Supreme Court’s stay.

The power companies also indicated that in the event the court did not issue a merits decision, remand would be a “sounder” alternative than abeyance.

Parties that intervened as respondents to defend the Clean Power Plan—including environmental and public health groups, power companies, and states and municipalities—argued against continuing the hold. The environmental and public health groups asserted that doing so would “convert temporary enforcement relief pending judicial review into a long-term suspension of the Clean Power Plan, without any court having issued a decision on its legal merits and without following the administrative steps necessary to amend, suspend, or withdraw a regulation.” While they said that remand would be a more appropriate solution, they also urged the D.C. Circuit to issue a decision on the merits.

The state and municipal respondent-intervenors likewise argued for a decision on the merits but said that remand would be “less detrimental” than an open-ended abeyance. They urged the court to limit the duration of the abeyance period to six months.

On April 28, 2017, the D.C. Circuit Court of Appeals granted the U.S. Environmental Protection Agency’s (EPA’s) motions to hold the cases challenging the Clean Power Plan in abeyance while EPA undertakes its review of the regulations. The court ordered that the case be put on hold for 60 days and that EPA file status reports every 30 days. The court further ordered the parties to file supplemental briefs addressing whether the cases should be remanded to EPA rather than held in abeyance. Those briefs were to be submitted by May 15. The court deferred ruling on multiple motions requesting that petitions challenging EPA’s January 2017 denial of requests for reconsideration of the Clean Power Plan rule be severed and consolidated with the pending Clean Power Plan challenges. The D.C. Circuit held oral arguments in the Clean Power Plan case in September 2016. In Executive Order No. 13783 issued on March 28, 2017, President Trump ordered EPA to review the Clean Power Plan regulations and, if appropriate, to suspend, revise, or rescind them.

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On March 28, 2017, President Trump signed the Promoting Energy Independence and Economic Growth executive order on March 28. The executive order directed EPA to review the Clean Power Plan (CPP), which established carbon dioxide emission limits for existing power plants, and also indicated that the attorney general should request a stay or other appropriate relief in the proceedings challenging the CPP. On the same day that the president signed the order, the Department of Justice filed a notice of the executive order, EPA’s review of the regulations, and potential forthcoming rulemaking, and moved to hold the CPP cases in abeyance. Respondent-intervenors indicated they would oppose the motions to hold the cases in abeyance.

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After the election of Democrat Roy Cooper as governor, the North Carolina Department of Environmental Quality moved to withdraw as a petitioner from the litigation challenging EPA’s Clean Power Plan.

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Oral argument on the Clean Power Plan will take place on September 27 in the D.C. Circuit Court of Appeals. The D.C. Circuit allocated time for argument over approximately three and a half hours on five categories of issues: statutory issues other than Section 112 of the Clean Air Act, Section 112, constitutional issues, notice issues, and record-based issues. In July and August, the petitioners and EPA submitted letters to the court to notify it of supplemental authorities—recent opinions issued by the D.C. Circuit and other circuit courts of appeal—that the parties believed to be pertinent and significant. Petitioners argued that the Fifth Circuit Court of Appeals’ stay of an EPA rule that disapproved state implementation plans from Texas and Oklahoma supported their argument that EPA’s assessment of grid reliability was insufficient. EPA said the ruling had minimal relevance and that none of the deficiencies identified by the Fifth Circuit were present in this case. EPA told the D.C. Circuit that the Seventh Circuit’s analysis upholding DOE’s consideration of the global benefits of reducing carbon emissions when setting energy efficiency standards would support EPA’s accounting for global benefits in the Clean Power Plan. The Clean Power Plan petitioners responded that the Seventh Circuit decision was not binding, involved a different statutory scheme, and did not address their arguments regarding comparison of global benefits and domestic costs. Clean Power Plan challengers also told the D.C. Circuit that its decision in a challenge to solid waste incineration units supported their argument that EPA could not base a standard based on averaging regulated sources’ and non-sources’ emissions, and that its decision upholding EPA’s withdrawal of a Clean Water Act disposal permit supported its arguments concerning consideration of costs. EPA said that these decisions did not support petitioners’ arguments.

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On its own motion, the D.C. Circuit Court of Appeals ordered that oral argument on the challenges to the United States Environmental Protection Agency’s Clean Power Plan be rescheduled to occur before the en banc court on September 27, 2016, rather than before a three-judge panel on June 2, 2016. The Federal Rules of Appellate Procedure provide that an en banc hearing “is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” The order indicated that Judge Merrick Garland and Judge Cornelia Pillard had not participated in the matter. An en banc court without Judges Garland and Pillard would be composed of three judges appointed by President Obama, three judges appointed by President George W. Bush, two judges appointed by President Clinton, and one judge appointed by President George H.W. Bush.

On March 28, the United States Environmental Protection Agency (EPA) filed its initial brief defending the Clean Power Plan, which regulates carbon dioxide emissions from existing power plants. The brief defended EPA authority to rely on shifting generation of electricity to cleaner sources of power as the best system of emission reduction. EPA also argued that regulation of hazardous air pollutants from power plants under Section 112 of the Clean Air Act did not bar regulation of carbon dioxide emissions under Section 111 and struck back at arguments that the Clean Power Plan unconstitutionally impinged on state authority. The brief also addressed procedural claims regarding changes made to the regulations between the proposed and final versions and defended the reasonableness of specific facets of the rule. In the days after EPA filed its brief, a number of intervenor-respondents and amicus parties filed their briefs in support of the Clean Power Plan, including 18 states; power companies representing almost 10 percent of the nation’s total generating capacity; renewable energy trade associations; environmental and public health groups; more than 200 current and former members of Congress; two former EPA administrators in Republican administrations; and more than 50 city and county governments along with three mayors, the U.S. Conference of Mayors, and the National League of Cities.

The D.C. Circuit Court of Appeals denied a motion by petitioner Energy & Environment Legal Institute (EELI) to file a supplemental brief that addressed EELI’s claims that an EPA official engaged in improper communications with environmental advocacy groups using a personal email account.

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Ten days after the Supreme Court stayed implementation of the Clean Power Plan, the petitioners filed a joint opening brief in the D.C. Circuit, and on February 23, a number of briefs were filed by amicus parties in support of the petitioners, including members of Congress, former state public utility commissioners, and a group of “organizations that represent women, minorities, and seniors, and those who advocate for free-market solutions to help these vulnerable populations.” In their joint brief, the petitioners contended that the Clean Power Plan was outside the authority vested in the United States Environmental Protection Agency (EPA) by Section 111 of the Clean Air Act, and that Section 112 expressly prohibited the Clean Power Plan. They also argued that the Clean Power Plan rule unconstitutionally abrogated state authority and “commandeer[ed] and coerc[ed]” states into implementing federal energy policy.

On January 21, 2016, the D.C. Circuit Court of Appeals denied motions asking for a stay of EPA’s Clean Power Plan. The order stated that the petitioners had not “satisfied the stringent requirements for a stay pending court review.” The court also ordered that consideration of the appeals be expedited. Oral argument was scheduled for June 2, 2016, and the court asked the parties to reserve June 3 in the event that argument did not conclude on the 2nd. The order indicated that the members of the panel that will review the challenge are Judges Judith W. Rogers (appointed by President Bill Clinton), Karen LeCraft Henderson (appointed by President George H.W. Bush) and Sri Srinivasan (appointed by President Barack Obama).

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Petitioners challenging EPA’s Clean Power Plan asked the D.C. Circuit to expedite the briefing schedule on “fundamental legal issues” raised by the regulations so that oral argument on these issues would be held by May 2016. The petitioners contended that it was “critical” the Clean Power Plan’s lawfulness be adjudicated as soon as possible, “[g]iven the acute importance of this case to the nation’s energy system and its customers” and the irreparable harm the regulations were causing. The fundamental legal issues for which the petitioners sought speedy adjudication included EPA’s authority to regulate power plants under Section 111(d) when they are already regulated under Section 112, and to use Section 111(d) to “fundamentally restructure the way in which electricity is generated and distributed.” The petitioners asked that “state-specific and programmatic” issues be severed and placed in a separate docket. EPA opposed the petitioners’ plan.

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As of December 4, additional petitions challenging the final Clean Power Plan rule had been filed, bringing the total number of petitions challenging EPA’s carbon dioxide emission standards for existing power plants to 28 and the total number of states challenging the rule to 27. All of the petitions were consolidated under the caption West Virginia v. EPA, No. 15-1363. On December 3, 2015, EPA filed its brief opposing motions to stay the rule. EPA said that the petitioners were unlikely to succeed on the merits, arguing that its carbon dioxide emissions guidelines were within its authority and that it had not impinged on the regulatory turf of other federal agencies or the states. In addition, EPA said that neither the states nor the industry petitioners had shown a likelihood of irreparable injury, and that a stay would not be in the public interest because climate change was already affecting the national public health, welfare, and environment and because grid reliability and electricity rates were not threatened by the rule.

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On November 30, the D.C. Circuit extended the deadline for filing initial submissions and procedural motions from November 30 to December 18. The deadline for dispositive motions was extended to December 28.

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A group of 18 states, joined by the District of Columbia and six municipalities, have moved to intervene on behalf of EPA, along with a number of other parties, including owners, developers, and operators of power plants; the municipally-owned utilities of Austin and Seattle; and Pacific Gas and Electric Company, a utility that provides electricity and gas to northern and central California. In addition, two former EPA administrators—William D. Ruckelshaus, EPA’s first and fifth administrator, and William K. Reilly, who led the agency during President George H.W. Bush’s administration—sought to participate on EPA’s behalf as amici curiae. Additional parties have also asked to intervene on behalf of the petitioners challenging the Clean Power Plan rule.

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In a clerk’s order, deadlines were set for submissions not related to the motions for stay, including statements of issues to be raised (November 30), procedural motions (November 30), and dispositive motions (December 14).

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After EPA submitted a motion for a consolidated briefing schedule, the D.C. Circuit issued an order on October 29 that would require any additional motions for a stay to be filed by November 5, though one petitioner, Basic Electric Power Cooperative, initially objected to this schedule as unfair and asked for reconsideration. The October 29 order required briefing on the stay motions to be completed on December 23. In addition petitioners were ordered to identify lead or liaison counsel for appropriate groups of petitioners within 10 days.

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After the United States Environmental Protection Agency (EPA) published its final Clean Power Plan rule in the Federal Register, 21 petitions for review were filed in the D.C. Circuit Court of Appeals to challenge the rule, which regulates carbon dioxide emissions from existing power plants. The petitioners included 26 states; a number of utilities, electric cooperatives, and trade associations representing utilities; two unions representing miners and workers in skilled trades such as welding and fabrication of boilers, ships, pipelines, and other industrial facilities; a coal mining company and other organizations representing the coal industry; the National Association of Home Builders; the U.S. Chamber of Commerce; a trade association for railroads; and other organizations representing manufacturing, industrial, and business interests. The states led by West Virginia have asked the D.C. Circuit to stay the rule and to expedite consideration of their petition. In addition, Oklahoma and North Dakota each asked for a stay in their separate proceedings, and three other motions for a stay were filed: one by petitioners representing the coal industry, one by the U.S. Chamber of Commerce and its co-petitioners, and one by utility interests (led by Utility Air Regulatory Group) and the two unions. The American Wind Energy Association, Advanced Energy Economy (“a national organization of businesses dedicated to making the energy we use secure, clean, and affordable”), and nine environmental and public health organizations (led by the American Lung Association) sought to intervene on behalf of EPA, while Peabody Energy Corporation, a coal company, sought to intervene on behalf of the petitioners.

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