Abby L. Harvey
GHG Monitor
9/11/2015
In a brief two-paragraph order issued Sept. 9, the U.S. Court of Appeals for the District of Columbia Circuit denied two requests to stay the Environmental Protection Agency’s recently finalized carbon standards for existing coal-fired power plants. The court has ruled “the petitions be denied because petitioners have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action.”
The regulation in question, the Clean Power Plan, was finalized Aug. 3. Under the rule, states are required to submit action plans to meet federally set emissions reduction goals. States that are unable or unwilling to submit state action plans will have a federal plan put in place.
The petitions had been viewed as premature at filing as the regulation has yet to be published in the Federal Register. Under the Clean Air Act, a regulation must be published to the Federal Register prior to legal challenge.
The first petition, filed Aug 13, by 15 states argued that “the Rule unusually imposes dates certain for the submission of State Plans – September 6, 2016, and September 6, 2018 – regardless of when the massive Rule is published. With this firm deadline, the Rule requires States to spend significant and irrecoverable sovereign resources now to begin preparing their State Plans.”
Attorneys general from West Virginia, Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, Wisconsin, Wyoming, and Kentucky signed the petition.
The second petition, filed by Peabody Energy, stated that irreparable harm is already happening and thus waiting until the rule is published in the Federal Register would be waiting too long. “EPA has released its Final Rule but now explains it does not expect the Rule to be published in the Federal Register until late October. … Assuming there are no delays in the publication of its 1,560-page Final Rule, EPA says that parties will not be able to file petitions for review or seek a stay until nearly two months from now. … That is too late. Irreparable harm is occurring now, before the Final Rule is published. Utilities are making irreversible decisions today about how to comply with the Final Rule, which cause irreparable injury to Peabody and others,” the Peabody petition says.
