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.

Challenge to EPA's final Clean Power Plan rule.

West Virginia v. EPA

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D.C. Circuit Set Schedule for Clean Power Plan Oral Argument, Parties Argued for Relevance of Recent Clean Air Act Precedents

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United States of America

District of Columbia

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D.C. Circuit Set Schedule for Clean Power Plan Oral Argument, Parties Argued for Relevance of Recent Clean Air Act Precedents

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