Appeals court suspends Clean Power Plan schedule – temporarily

The U.S. Court of Appeals for the D.C. Circuit on June 24 suspended the briefing schedule in the appeals by a number of parties, including the state of North Dakota and coal producer Murray Energy, of the U.S. Environmental Protection Agency’s CO2-reducing Clean Power Plan.

Said the order: “Upon consideration of the motion to suspend briefing schedule, the opposition thereto, and the reply; and the motion to establish briefing schedule and the opposition thereto, it is ORDERED that the motion to suspend briefing schedule be granted and the motion to establish briefing schedule be denied. The briefing schedule is hereby suspended.”

These new deadlines now apply:

  • Motions to consolidate filed by July 12; and
  • Motions to amend briefing schedule and format filed by Aug. 4.

The parties were strongly urged to submit a joint motion and were reminded that the court looks with extreme disfavor on repetitious submissions and will, where appropriate, require a joint brief of aligned parties with total words not to exceed the standard allotment for a single brief.

Said a June 14 brief from the plaintiffs and industry intervenors in the case: “Both Petitioners and Respondents agree the existing briefing schedule should be set aside in light of EPA’s recent denial of administrative petitions to reconsider the EPA rule establishing new source performance standards for new, modified, and reconstructed electric generating units under section 111(b) of the Clean Air Act (the ‘Rule’). Both further agree that petitions for review of the denial of the administrative petitions for reconsideration should be consolidated with the present petitions for review of the underlying Rule. The parties disagree about whether a new briefing schedule should be set now, before all parties have filed their challenges to the reconsideration denial (Respondents’ view), or whether the schedule should be set in early August so that new parties to the newly consolidated case can participate in formulation of the briefing schedule that will bind them (Petitioners’ view).

“Because Respondents’ proposal would unfairly prejudice as-yet-unknown parties that may challenge the reconsideration denial, Petitioners oppose Respondents’ cross-motion to establish a modified briefing schedule. Moreover, because no party sought a stay of the Rule and the Rule remains in effect, Respondents will not be harmed by waiting a few additional weeks so that all parties may have input on a new proposed briefing schedule.”

The Clean Power Plan, which has been suspended by the U.S. Supreme Court pending this appeals court review, imposes 32% greenhouse gas reductions on existing power plants by 2030. The separate rule on new power plants, issued at the same time as the CPP, sets standards for greenhouse gas emissions for new power plants based on emissions from the most modern gas-fired plants, thus effectively barring new coal-fired plants that lack carbon capture and storage capability.

Parties supporting the rules are okay with consolidation, but not delay

In a June 6 brief, various states and industry organizations that support the Clean Power Plan and the new plant rule, including power generator Calpine Corp. (NYSE: CPN), filed a brief supporting the consolidation of the CPP and new power plant appeals, but opposing the briefing delay.

They wrote: “On May 6, 2016, EPA published a new final action denying five administrative petitions for reconsideration of the 111(b) Rule. The deadline under the Clean Air Act to file judicial petitions for review of this final action is July 5, 2016. At least three of the five entities whose administrative reconsideration petitions were denied by EPA are expected to file judicial petitions for review—the  State of Wisconsin, the Energy & Environmental Legal Institute, and the Utility Air Regulatory Group. All three are already current Petitioners in the 111(b) Rule case. The remaining two entities whose administrative reconsideration petitions were denied by EPA are American Electric Power and Ameren Corporation, and at least one of them is a member of a current Petitioner (specifically, the American Coalition for Clean Coal Electricity, No. 15-1481).

“In West Virginia, the Court ordered an expedited schedule for briefing the challenges to the Clean Power Plan, pursuant to which the parties submitted their final briefs on April 22, 2016. After originally scheduling oral argument in that case to be held before a three-judge panel on June 2, 2016, the Court issued an order on May 16, 2016, cancelling that argument and scheduling an en banc argument to be held September 27, 2016.

“Although the Court has not ordered expedited briefing for the 111(b) Rule as it did for the Clean Power Plan, both Petitioners and Respondents have long made clear their interest in resolving challenges to the 111(b) Rule as promptly as is feasible without having to simultaneously prepare briefs or argument in both cases, given the extensive overlap of the parties in the two cases and the burden that simultaneous briefing or argument in the two cases would entail.

“The scheduling order currently governing the 111(b) Rule case was entered on March 24, 2016. Under that order, Petitioners’ opening briefs are due July 15, 2016, approximately six weeks after the June 2 date when the parties until recently were preparing to present oral argument regarding the Clean Power Plan. EPA’s and Respondent-Intervenors’ briefs in the 111(b) Rule case are currently due on September 23 and 30, respectively, with replies to be filed on October 21 and final briefs on November 14, 2016.

“Petitioners’ new procedural motion in the 111(b) Rule case asks that the Court: (a) suspend the current schedule; (b) require that a motion to consolidate petitions challenging the Reconsideration Denial with the current case be filed by July 12, 2016; and (c) further require that a motion to amend the briefing schedule be filed by August 4, 2016. Respondents support consolidation in the particular circumstances of this case, and agree that the parties should be able to brief and argue at one time the merits of all issues raised by the 111(b) Rule and the related Reconsideration Denial. However, such consolidation should not come at the expense of unnecessarily delaying the final resolution of these issues. This is particularly the case given the relationship between the 111(b) Rule and the Clean Power Plan.

“The Court has expressly adopted measures to expedite its resolution of the challenges to the latter rule; an extended delay of the 111(b) Rule litigation should therefore be avoided to prevent lingering uncertainty regarding the judicial resolution of the challenges to both rules. The Court can consolidate the 111(b) Rule case with the anticipated Reconsideration Denial challenges, while also preventing or at least minimizing delay of the current schedule, by entering a modified briefing schedule now. Petitioners suggest that waiting until August to consider a proposed schedule modification ‘will allow any new petitioners to the case to be known and to be consulted.’ Such reasoning made sense at the outset of this litigation, when a few early petitions of the 111(b) Rule had been filed and a large number of additional entities were expected to potentially seek review of the rule.

“It does not make sense now because, as shown above, at least four of the five entities who are likely to challenge the Reconsideration Denial already are parties in the 111(b) Rule case, and the identity of the remaining entity, Ameren Corporation, is known.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.