In response to the movants’ claims that they are likely to succeed on the merits, EPA reviews the justification that it provided in the CPP and accompanying legal memorandum for its statutory authority to promulgate the rule.
In response to the movants’ claims that they will suffer irreparable harm if the rule is not stayed during the judicial review period, EPA stresses both the timing of and the range of compliance options offered in the rule. Specifically, it states that in comparison to the short judicial review period, states that choose to submit a final plan have up to three years to do so and reductions are not required before 2022. In highlighting the flexibility that states have in choosing compliance options, EPA also argues that due to that flexibility, industry petitioners’ claims that the rule will lead to the immediate closure of power plants and coal mines are speculative. EPA also stresses that if a state chooses to do nothing it will not be sanctioned. In EPA’s words, “by allowing states to design their own plans, [the CPP] offers them a carrot that they are free to refuse.”
Both the motions and EPA’s response foreshadow the arguments that the parties will be raising in opposition to or in defense of the Clean Power Plan during the substantive briefing stage of this case. However, because the bar for a request to stay is high, the court’s ruling on the motions is not necessarily a dispositive indicator of the way the court will ultimately rule on the merits.
[PM UPDATE] On December 8, 2015, the parties who have moved to intervene in the case on behalf of EPA filed their briefs opposing the motions to stay:
- States of New York, California, Connecticut, Delaware, Hawai’i, Illinois, Iowa, Maine, Maryland, Minnesota, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Washington, the Commonwealths of Massachusetts and Virginia, the District of Columbia, the Cities of Boulder, Chicago, New York, Philadelphia, and South Miami, and Broward County, Florida (collectively, States and Municipalities)
- Calpine Corporation, the City of Austin d/b/a Austin Energy, the City of Seattle, National Grid Generation, LLC, New York Power Authority, NextEra Energy, Inc., Pacific Gas and Electric Company, Sacramento Municipal Utility District, and Southern California Edison Company (collectively, Power Companies).
- American Lung Association, Center for Biological Diversity, Clean Air Council, Clean Wisconsin, Coal River Mountain Watch, Conservation Law Foundation, Environmental Defense Fund, Kanawha Forest Coalition, Keepers of the Mountains Foundation, Mon Valley Clean Air Coalition, Natural Resources Defense Council, Sierra Club, Ohio Environmental Council, Ohio Valley Environmental Coalition, and West Virginia Highland Conservancy (collectively, Environmental Health and Public Health Intervenors).
- Advance Energy Economy, American Wind Energy Association, Solar Energy Industries Association (collectively, Advanced Energy Associations)