New Source Performance Standard Will Also Get Its Day In Court

UPDATED 08.30.2016 with additional petitions for review of EPA’s denial of reconsideration.
UPDATED 02.04.2016 with additional petitioners and parties.


To date, four petitions (listed below) have been filed in the D.C. Circuit Court of Appeals seeking review of EPA’s carbon emission standards for new, modified, and reconstructed units (also referred to as the New Source Performance Standard or NSPS).  On November 2, the court issued an order consolidating the petitions under lead Case No. 15-1381, State of North Dakota v. EPA.

Although the NSPS petitions have been consolidated under a separate lead docket from the petitions seeking review of the Clean Power Plan, the rulemakings, and as a result the petitions for review, are closely intertwined. The reason is this: EPA promulgated both the NSPS and CPP under its Section 111 Clean Air Act authority.  Section 111 of the Clean Air Act directs EPA to first make an endangerment finding (i.e. a finding that a particular stationary source of pollution “causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare,” 42 U.S.C. § 7411(b)(1)(A)), then promulgate regulations for new sources (42 U.S.C. § 7411(b)(1)(B)), and finally promulgate a performance standard for existing sources (42 U.S.C. § 7411(d)).

Because the NSPS is the “predicate” rulemaking to the CPP, the court’s decision on the merits in North Dakota v. EPA could affect the outcome of West Virginia v. EPA. This will especially be true if the North Dakota court rules on EPA’s endangerment finding or EPA’s legal authority to promulgate the NSPS.  Stay tuned as the drama continues.

More information on the parties that have filed petitions, motions for stay, and motions to intervene in West Virginia v. EPA is available here.

Petitions for Review of the NSPS (and petitions for review of EPA’s denial of reconsideration):

Party(ies) Case No.
(LEAD CASE) State of North Dakota 15-1381
Murray Energy Corporation 15-1396
Energy & Environment Legal Institute 15-1397
The States of West Virginia, Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin, and Wyoming; the Commonwealth of Kentucky;  the Attorney General for the State of Michigan; the State of Arizona Corporation Commission, and the Departments of Environmental Quality of the states of Louisiana and North Carolina 15-1399
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO 15-1434
Peabody Energy Corporation 15-1438
Utility Air Regulatory Group and American Public Power Association  15-1448
Indiana Utility Group 15-1458
National Mining Association 15-1456
United Mine Workers of American, AFL-CIO 15-1463
Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, and Southern Power Company 15-1468
Chamber of Commerce of the United States of America, National Association of Manufacturers, American Fuel & Petrochemical Manufacturers, National Federation of Independent Business, American Chemistry Council, American Coke and Coal Chemicals Institute, American Foundry Society, American Forest & Paper Association, American Iron & Steel Institute, American Wood Council, Brick Industry Association, Electricity Consumers Resource Council, Lignite Energy Council, National Lime Association, National Oilseed Processors Association, and Portland Cement Association 15-1469
Biogenic CO2 Coalition 15-1480
American Coalition for Clean Coal Electricity 15-1481
Luminant Generation Company, LLC, Oak Grove Management Company, LLC, Big Brown Power Company, LLC, Sandow Power Company, LLC, Big Brown Lignite Company, LLC, Luminant Mining Company, LLC, and Luminant Big Brown Mining Company, LLC 15-1482
National Rural Electric Cooperative Association; Basin Electric Power Cooperative; East Kentucky Power Cooperative, Inc.; Hoosier Energy Rural Electric Cooperative, Inc.; Minnkota Power Cooperative, Inc.; Sunflower Electric Power Corporation; and Tri-State Generation & Transmission Association, Inc. 15-1484


Intervenors in Support of Respondent-EPA in 15-1381 et al.:
American Lung Association
Calpine Corporation

Center for Biological Diversity
City of Austin d/b/a Austin Energy
City of Los Angeles

City of New York
City of Seattle

Clean Air Council
Clean Wisconsin
Commonwealth of Massachusetts
Commonwealth of Virginia

Conservation Law Foundation
District of Columbia
Environmental Defense Fund
Golden Spread Electric Cooperative, Inc.
National Grid Generation, LLC

Natural Resources Defense Council
New York Power Authority
Nextera Energy, Inc.

Ohio Environmental Council
Pacific Gas and Electric Company

Sacramento Municipal Utility District
Sierra Club

State of California
State of Connecticut
State of Delaware
State of Hawaii
State of Illinois
State of Iowa
State of Maine
State of Maryland
State of Minnesota

State of New Hampshire
State of New Mexico
State of New York
State of Oregon
State of Rhode Island
State of Vermont
State of Washington
Tri-State Generation and Transmission Association, Inc.

Intervenors in Support of Petitioners in 15-1381 et al.:
Gulf Coast Lignite Coalition
Lignite Energy Council


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