Opening Briefs Filed in NSPS, MATS Litigation

On December 14, EPA filed its initial brief in North Dakota v. EPA, the challenge to EPA’s New Source Performance Standards (NSPS) for new power plants.  Issues include EPA’s determinations regarding the viability and cost of carbon capture and storage and the achievability of the standards in the final rule, as well as EPA’s election to regulate CO2 emissions from new power plants under Section 111 of the Clean Air Act.  Other recent activity in this case includes an order setting oral argument for April 17, 2017, and a motion from petitioners to extend the briefing schedule (without modifying the April 17 date for oral argument).

In the state and industry challenge to the Mercury and Air Toxics Standards (MATS), Murray Energy Corp. v. EPA, petitioners filed their opening brief last month.  Challenges include whether EPA’s finding that the regulation is appropriate and necessary if it is affordable for industry as a whole is lawful, whether EPA’s benefit-cost analysis is lawful, and whether EPA erred in its consideration of alternative strategies.  The Cato Institute also filed a brief as an amicus in support of petitioners.  According to the court’s briefing schedule, EPA’s brief is due January 19, 2017.  There are numerous intervenors in support of EPA in this case, and their brief is due February 10.

Briefing is also underway in ARIPPA v. EPA, a consolidated challenge by ARIPPA (a generation trade association), Utility Air Regulatory Group, and several environmental groups regarding EPA’s April 2015 denial of reconsideration of the MATS rule.  In their opening brief Industry petitioners challenge EPA’s denials of their petitions presenting data that they argue was impracticable to submit during the comment period but go to EPA’s “appropriate and necessary” determination.  Environmental petitioners challenge in their opening brief EPA’s refusal to reconsider the particulate standard for existing coal-fired power plants.

These two MATS-related cases, ARIPPA and Murray Energy, are being coordinated for argument before the same panel on the same day.

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