D.C. Circuit Holds in Abeyance MATS and NSPS Litigation

UPDATED 07.25.2018 Both cases continue to be held in abeyance with EPA filing status reports at 90-day intervals.

In addition to the D.C. Circuit’s order granting EPA’s motion to hold in abeyance litigation surrounding the Clean Power Plan, the court last week also put holds on ongoing litigation over EPA’s Mercury and Air Toxics Standards (MATS) 2016 Supplemental Finding and its CO2 New Source Performance Standards (NSPS) for New Power Plants.

MATS 2016 Supplemental Finding.  Last week, the D.C. Circuit granted EPA’s motion to indefinitely postpone oral argument in Murray Energy Corp. v. EPA, No. 16-1127.  The court is holding the consolidated cases in abeyance to allow the agency time to determine what action the agency will be taking with respect to the MATS Supplemental Finding.  The case has been removed from the oral argument calendar, and EPA was directed to file status reports on its review of the Supplemental Finding at 90-day intervals.

New Source Performance Standards.  The D.C. Circuit also issued an order granting EPA’s March 28 motion to hold in abeyance North Dakota v. EPA, No. 15-1381.  In contrast to the MATS indefinite abeyance, the court ordered a limited 60-day abeyance of these consolidated cases, during which time EPA must file status reports at 30-day intervals.  (In its previous order the Court had removed the April 17 oral argument date from its calendar pending its decision on the motion).  Similar to the directive it issued in the CPP litigation, the court also directed the parties to file supplemental briefs by May 15 addressing whether the cases should be remanded to EPA rather than held in abeyance, and requested that submissions be joint “to the extent possible.”

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