In yet another challenge to the Clean Power Plan, the United States Court of Appeals for the District of Columbia again ruled in favor of EPA by denying petitions for an emergency stay of the Plan's deadlines. In re: State of West Virginia, et al., No. 15-1277 consolidated with No. 15-1284. This decision comes on the heels of the D.C. Circuit's recent dismissals of Murray Energy and a group of states' challenges to EPA's legal authority to promulgate the Clean Power Plan, as discussed in the Summer 2015 issue of The Climate Report .
A large coal company and 15 states ("petitioners") brought emergency petitions on August 13, 2015, 10 days after EPA finalized the Clean Power Plan and several weeks before the Plan's publication in the Federal Register on October 23, 2015.
In support of their petitions, petitioners asserted that because the Clean Power Plan was final, the matter was ripe for review, notwithstanding the fact that it had not yet been published in the Federal Register. Petitioners argued that the final rule exceeded EPA's legal authority, in part because coal-fueled power plants were sources already regulated under Section 112 of the Clean Air Act, but EPA impermissibly was attempting to regulate them simultaneously under Section 111(d) of the Clean Air Act.
Petitioners further argued that, absent a stay, they faced irreparable harm. They contended that it could have been months before the final rule was published in the Federal Register, while the deadlines for submission of State Plans under the Clean Power Plan—September 6, 2016 and September 6, 2018—remained firm. Petitioners explained that their primary concern was the significant time and resources they would have to expend, beginning immediately, in order to comply with the Plan's strict deadlines, without first being able to challenge the final rule.
In response, EPA countered that the All Writs Act, 28 U.S.C. §1651(a), remained unavailable to petitioners and that the court lacked jurisdiction because the Clean Air Act prescribes a particular time period (60 days following publication in the Federal Register) and a particular procedural mechanism (a petition for review) for challenging final rules. Additionally, EPA argued that petitioners failed to demonstrate irreparable harm because the compliance deadlines were still far off and petitioners would not be injured by waiting until publication of the final rule to challenge it.
On September 9, 2015, the D.C. Circuit issued a per curiam decision denying petitioners' applications for an emergency stay of the Plan's deadlines:
[I]t is ORDERED that 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. See Reynolds Metals Co. v. FERC, 777 F.2d 760, 762-63 (D.C. Cir. 1985); Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).
The cases cited by the court, Reynolds and Washington Metro, set forth the factors the D.C. Circuit considers when ruling on an emergency stay. Both cases emphasize the requirement that irreparable injury must be likely to occur for the stay to be granted. Although not expressly stated in the decision, the references to Reynolds and Washington Metro suggest that the D.C. Circuit agreed with EPA that petitioners did not demonstrate irreparable harm sufficient for an emergency stay of the final rule's deadlines.
Upon publication of the Clean Power Plan in the Federal Register on October 23, dozens of states and industry groups, including each of the states that sought an emergency stay before the Plan was published, launched petitions challenging the final rule. On October 26, the D.C. Circuit consolidated those challenges. On November 2, the coal company, which also previously sought an emergency stay, moved to intervene in support of the petitions in the consolidated suit.
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