As reported in the Fall 2016 issue of The Climate Report, an en banc panel of the United States Court of Appeals for the District of Columbia Circuit heard oral argument on September 27, 2016, in West Virginia v. EPA, No. 15-1363, a case involving challenges to the U.S. Environmental Protection Agency's ("EPA") 2015 rule known as the Clean Power Plan ("CPP"). Despite the fact that the court has not yet issued an opinion, there have been a number of noteworthy developments in the case.
On January 12, 2017, EPA took final action denying additional petitions for reconsideration of the CPP. Parties began filing petitions for review of these denials in the United States Court of Appeals for the District of Columbia Circuit on January 17, 2017. These petitions have been consolidated in North Dakota v. EPA, No. 17-1014.
Beginning on February 24, 2017, parties who had filed petitions for review in both North Dakota v. EPA and West Virginia v. EPA began filing motions requesting that the D.C. Circuit sever and consolidate their petitions in North Dakota v. EPA with their petitions in West Virginia v. EPA and set a briefing schedule on the new petitions. EPA responded that it did not oppose consolidation but argued that all of the petitions for review of the CPP, and not just some, should be consolidated in one action for purposes of judicial economy and to avoid overlapping claims.
More significantly, on March 28, 2017, EPA filed a motion in West Virginia v. EPA to hold the case in abeyance while EPA conducts a review of the Rule pursuant to the President's March 28, 2017, Executive Order titled "Promoting Energy Independence and Economic Growth" that directed EPA to review the CPP. EPA argued that because the CPP is now under EPA review and may be substantially modified or rescinded through further rulemaking, holding the case in abeyance: (i) is in the interest of judicial economy and efficiency; (ii) will avoid the untenable situation where the United States is unable to represent the current Administration's position on the substantive questions that are at the subject of the case; and (iii) will preserve the status quo because implementation of the rule has already been stayed by the U.S. Supreme Court. Parties filed both motions in support of and opposition to EPA's motion.
On April 28, 2017, in consideration of the motions to sever and consolidate and EPA's motion to hold the case in abeyance, the D.C. Circuit ordered that: (i) the case be held in abeyance for 60 days from the date of the order and that EPA file status reports at 30 day intervals; (ii) the parties file supplemental briefing due May 15, 2017, addressing whether the case should be held in abeyance or remanded to EPA; and (iii) the parties' motions to sever and consolidate be deferred pending further order of the court.
We will continue to monitor the challenges to the CPP for significant developments.
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