Here’s an overview, as of Sept. 28, 2016, of some developments in the federal lawsuit by 27 states over the U.S. EPA’s Clean Power Plan for regulating carbon emissions from power plants. The Clean Power Plan, formally known as “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” was published in the Federal Register on October 23, 2015. The case is State of West Virginia et al. v. United States Environmental Protection Agency et al. in the U.S. Court of Appeals for the District of Columbia.
Developments (starting with oldest)
On November 4, 2015, Virginia Attorney General Mark Herring announced that Virginia would be part of a coalition of 14 states plus several localities seeking to intervene to support the U.S. EPA in the lawsuit.
On February 9, 2016, the U.S. Supreme Court granted a stay of EPA’s implementation of the regulation until the lawsuit has run its course. The stay will remain is effect while the case returns to the D.C. Appeals Court to hear the merits of the lawsuit and for any appeals of that court’s eventual ruling. That court is scheduled to hear oral arguments in June 2016. Responding to the stay, Va. Gov. Terry McAuliffe said in a February 10 news release that “we will stay on course and continue to develop the elements for a Virginia plan to reduce carbon emissions and stimulate our clean energy economy.”
On May 16, 2016, the U.S. Court of Appeals for the District of Columbia decided that the full court will hear the case, rather than a three-judge panel. Previously, the smaller panel had been scheduled to hear the case on June 2, 2016.
On September 27, 2016, for about seven hours, the D.C. Appeals Court heard oral arguments in the case. The court’s 10 active judges were present; Supreme Court nominee Merrick Garland recused himself from the case. According to the CNN account of the hearings (Appeals court hears high-stakes challenge to Obama’s clean power plan, CNN, 9/27/16), “[d]ozens of lawyers from the government, industry, and public interest groups packed” the courtroom. For more on the day’s arguments, see E&E Publishing’s “Clean Power Plan Hub,” online at http://www.eenews.net/interactive/clean_power_plan.
Sources and ongoing list of news articles related to the lawsuit:
Appeals court hears high-stakes challenge to Obama’s clean power plan, CNN, 9/27/16.
Invoking Scalia, judges question whether EPA bent the law, Greenwire, 9/27/16.
D.C. federal appeals court hears oral arguments on controversial Clean Power Plan, West Virginia Metro News Network, 9/27/16.
The full appeals court in Washington has elected to hear arguments in the legal fight over President Barack Obama’s plan to curtail greenhouse gas emissions, potentially accelerating the case’s path to the Supreme Court – Associated Press, as published by U.S. News & World Report, 5/16/16
Dominion goes to bat for Clean Power Plan, Daily Press, 4/4/16 [“Dominion Power filed an amicus brief Friday [4/1/16] in the national lawsuit against the federal Clean Power Plan, pushing back against arguments plan critics have made in an effort to derail new carbon rules. The company didn’t lay out a firm yes-or-no position on the plan itself, which will likely be decided by the U.S. Supreme Court. But the brief puts the weight of Virginia’s energy giant behind key aspects of the plan to cap carbon production at utility plants.”]
Herring joins coalition to curb climate change, Augusta Free Press, 3/29/16
[Virginia] Chamber of Commerce joins suit against EPA rules, WRIC-TV Richmond, 2/28/16.
EPA Chief: Clean Power Plan to Win on Merits, Power Magazine, 2/25/16.
Clean Power Plan: Challengers question EPA’s authority, rulemaking process in briefs, E&E Publishing EnergyWire, 2/22/16 [challengers to the Clean Power Plan filed briefs with the U.S. Court of Appeals for the D.C. Circuit on 2/19/16].
Clean Power Plan: ‘Heads are still spinning’ after Scalia’s death, SCOTUS ruling, E&E Publishing ClimateWire, 2/16/16.
States Evaluating Options Following CPP Stay, RTO Insider, 2/14/16.
Some States Forging Ahead With Emissions Reduction Plans Despite Supreme Court Ruling, Insideclimate News, 2/12/16.
Governor McAuliffe Statement on U.S. Supreme Court’s Decision to Stay the Clean Power Plan, Virginia Governor’s Office News Release, 2/10/16.
“Will a surprising Supreme Court move shake the Paris climate accord?” – PBS NewsHour (6 min./16 sec. video), 2/10/16.
Supreme Court puts the brakes on the EPA’s Clean Power Plan, Washington Post, 2/9/16.
Virginia Joins Multi-State Coalition Supporting Economic, Environmental, and Health Benefits of Clean Air, Virginia Attorney General’s Office News Release, 11/4/15.
E&E News, “Clean Power Plan Hub – Legal Challenges and Documents,” online at http://www.eenews.net/interactive/clean_power_plan/fact_sheets/legal, accessed 11/9/15.
For more information on the Clean Power Plan
E&E News “Clean Power Plan Hub,” online at http://www.eenews.net/interactive/clean_power_plan.
U.S. EPA, “Clean Power Plan for Existing Power Plants,” online at http://www.epa.gov/cleanpowerplan/clean-power-plan-existing-power-plants.
Virginia Water Central News Grouper post, Final Version of “Clean Power Plan” Announced by President Obama and the U.S. EPA on August 3, 2015; Carbon Emissions from Existing Power Plants to be Reduced by 32% Nationwide; States Have Individually Set Reduction Targets, 8/3/15.