Briefs Have Been Filed, Oral Arguments Have Been Presented, Pens Continue to Write

Although Clean Power Plan briefing was completed in April and oral argument was held at the end of September, parties are continuing to update the court on information relevant to their positions.  Rule 28(j) of the Federal Rules of Appellate Procedure allows parties to file short (350 words or less) letters “[i]f pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision.”  To date, two such letters have been filed, and until the decision is rendered more are to be expected.

The first 28(j) letter, filed shortly before oral argument by state and state agency petitioners, concerns California’s proposed CPP compliance plan.  In the letter, the Petitioners claim that California’s proposed plan supports their arguments that EPA had failed to demonstrate “that its national-average performance rates are achievable by each State” or that “a sufficient interstate [trading] program will emerge to enable nationwide compliance.”  The Petitioners further claim that “States who can over-comply with EPA’s performance rates can and may very well either refuse entirely to trade with States like Montana, Kentucky, North Dakota, and West Virginia, or force those States to adopt more stringent regimes than the Rule provides, as the price for ‘linkage’ and compliance.”  California, Massachusetts, and New York—who are supporting EPA in the litigation—filed a response shortly thereafter rebutting the allegation that California’s proposal refused to “link to other States’ future plans.”  The response letter also claims that “[i]n any case, the CPP does not depend on trading, and Petitioners cannot show it is required for compliance.”

The second 28(j) letter, filed on Halloween by Petitioner National Mining Association, concerns EPA’s predictions for the amount of coal generation that would retire absent the CPP.  The Petitioner has argued that EPA’s CPP modeling “exaggerat[es]” the retirement rate.  In the letter, Petitioner explains that EPA “has now tacitly conceded Petitioners’ point” because EPA’s recently published Cross-State Air Pollution Rule Update includes a base case scenario for 2016 with 268 GW of coal generation, and that this amount is higher than EPA’s CPP base case scenario which predicted that if the rule was not adopted there would be 214 GW of coal generation in 2016.  Petitioner asserts that the amount of coal in service must “fall significantly to meet the CPP’s requirements.”  EPA and parties supporting EPA have an opportunity to file a limited response.

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