As previously discussed, many parties have turned to the courts to challenge the Clean Power Plan, but this is not the only venue parties opposing the CPP have turned to for relief. Parties are also challenging EPA directly through petitions for reconsideration.
Ordinarily, objections to a rule promulgated under the Clean Air Act must be raised during the public comment period; otherwise they cannot later be raised in a petition for judicial review. However, there is an exception in the Clean Air Act for objections that were impracticable to raise within the time for public comment or when the grounds for objections did not arise until after the public comment period. If an objection satisfies this requirement, and is of central relevance to the outcome of the rule, a petitioner can ask EPA to convene a proceeding for reconsideration. This section also allows, but does not require, EPA to stay the effectiveness of a rule for up to three months pending reconsideration.
In late December, multiple states, including Kentucky, Montana, and Wyoming, filed petitions for reconsideration of the CPP before the EPA, joining New Jersey who filed a petition for reconsideration and administrative stay back in September. While the specific arguments made by each state differ, all claim that their objections were impracticable to raise during the comment period because of the extent that the final rule differs from the proposed one. Several states also argue that the final rule relied on data that was not available during the comment period.
States are not the only parties filing petitions for reconsideration. As an example, the National Rural Electric Cooperative Association filed a petition in late December asking EPA to reconsider and take public comment on the reliability safety valve issue.
So far EPA has not responded to these petitions for reconsideration, and the statute does not impose a timeline for EPA to do so.
This post will likely be updated as more petitions for reconsideration are available.