In the past few weeks, there have been several developments in West Virginia v. EPA. Here is a quick recap:
- On December 8, 2015, the petitioners jointly filed a motion requesting the Court: (1) adopt an expedited briefing schedule and hold oral argument before May 2016 with regard to “the fundamental legal issues raised by the Rule”; and (2) sever and establish a separate docket for “state-specific and programmatic” (or “record-based”) issues. The movants stated the “foundational legal issues relate to whether EPA has authority under the Clean Air Act (“CAA”) to issue the Rule, and even if it does, whether Section 111(d) of the CAA, 42 U.S.C. § 7411(d), authorizes a rule like this rule,” and that the Court’s resolution of the first set of issues could obviate the need to brief the second set of issues.
- On December 21, 2015, EPA and intervenors supporting EPA (Power Companies and State and Local Governments, and Environmental and Health Organizations) filed responses opposing the briefing schedule motion. They urged the Court to reject the motion on grounds that the petitioners’ distinction between “fundamental legal issues” and the rest of the issues is arbitrary, and that bifurcation of the proceeding would be inefficient and prolong the judicial process.
- On December 18, 2015, petitioners started filing their respective statements of issues (more will be coming through January). One set of petitioners, LG&E and KU Energy, filed a companion motion to their statement of issues asking the Court to sever certain issues relating to whether the final CPP was a “logical outgrowth” of the proposed rule because these issues are the subject of the parties’ request for administrative reconsideration. LG&E and KU Energy also asked the Court to open a separate docket on the severed issues and hold the new docket in abeyance pending EPA’s reconsideration proceedings. EPA has requested an extension on the response deadline until January 19, 2016.
- As of December 22, 2015, the deadline to file a petition for judicial review of the CPP, forty petitions had been filed challenging the rule. The complete list of petitioners is available here.
- And last but not least, on December 23, 2015, certain petitioners who have moved for the Court to stay the CPP filed replies responding to EPA and intervenors in support of EPA: Joint Reply of State Petitioners, Joint Reply of Utility, Coal, Labor, and Business Movants, and Reply of Movant-Intervenor Peabody Energy. One interesting thing to note is that the State Petitioners’ Reply includes a chart listing activities taken by individual states since August 3 to prepare CPP state plans.