Yesterday, the Fifth Circuit issued an order granting EPA’s motion to hold Southwestern Electric Power Co. v. EPA (consolidated challenges to EPA’s “Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category” (Rule)) in abeyance for 120 days, until August 12, 2017. The Court also granted EPA’s request to file a motion to govern further proceedings upon the conclusion of the 120 day period. In today’s Federal Register, EPA published a notice stating that it will be reconsidering the Rule. EPA also stated that it is postponing the Rule’s compliance dates that have not yet passed, pending judicial review.
And adding to the EPA’s list of requests to postpone judicial rulings on cases involving its regulations, EPA has filed motions in:
- Murray Energy Corp. v. EPA (concerning EPA’s MATS Supplemental Finding) asking the D.C. Court of Appeals to continue oral argument to “allow the new Administration adequate time to review the Supplemental Finding to determine whether it will be reconsidered.” Oral argument is currently scheduled for May 18, 2017. While the Petitioners filed in support of EPA’s motion, State and Local Government Respondent-Intervenors, Industry Respondent-Intervenors, and Non-Governmental Organization Respondent-Intervenors have opposed the motion.
- American Petroleum Institute v. EPA (consolidated cases concerning EPA’s 2016 New Source Performance Standards for Oil and Natural Gas Sector and its earlier 2012 and 2014 standards). EPA asks the D.C. Court of Appeals to hold the consolidated cases in abeyance until 30 days after EPA completes its review of the 2016 NSPS Rule pursuant to the President’s Promoting Energy Independence and Economic Growth Executive Order. EPA states that “[w]hile these consolidated cases include previously-filed challenges to the 2012 and 2014 NSPS Rules, abeyance of these cases as a whole is appropriate given that the 2016 NSPS Rule modified the regulatory text enacted in 2012 and 2014, … [and that], once EPA has determined whether it will initiate a rulemaking addressing the 2016 Rule, the parties can consider what course is appropriate for whatever remains of Petitioners’ challenges to the 2012 and 2014 Rules and file a motion to govern accordingly.” State Petitioners and Industry Petitioners have filed responses supporting EPA’s motion. State Respondent-Intervenors and Environmental Respondent-Intervenors oppose the motion. EPA filed its reply on April 21st.
