Litigation over EPA’s Regional Haze Rule Federal Implementation Plans for Texas and Oklahoma took another turn this week as EPA and the petitioners/petitioner-intervenors filed their respective status reports with the Fifth Circuit informing the Court of their unsuccessful attempt to settle the case.
As previously reported, in July 2016, the Court granted the petitioners’ motion to stay implementation of EPA’s Regional Haze Rule as applied to Texas and Oklahoma. Shortly thereafter, the parties jointly filed, and were granted, a request to stay the judicial proceedings in order to afford the parties an opportunity to negotiate a settlement. Based on the status reports, the parties’ attempts to reach a global settlement in these consolidated cases and in similar cases pending in the Tenth (Luminant Generation Co. v. EPA, No. 16-9508) and D.C. Circuits (Texas v. EPA, No. 16-1078) were not successful. In its status report, EPA also informs the Court that it intends to request a voluntary remand of the portions of the final rule that involve the replacement of disapproved elements of the states’ proposed State Implementation Plans with a Federal Implementation Plan. Petitioners, in their status report, state that at this time they do not join in EPA’s motion because they have not yet had a chance to review it. The motion for voluntary remand has not yet been filed, but in the interim, the Court has resumed the briefing schedule with petitioners’ briefs due on December 29, 2016.
At the same time as the status reports were being filed, Sierra Club and the National Parks Conservation Association, intervenors in support of EPA, filed a petition for rehearing en banc of the July 2016 decision. Petitioners ask the full Court reconsider the three-member panel’s decision rejecting EPA’s finding that the rule is based on a determination of nationwide scope or effect and denying EPA’s request that the petitions be heard in the D.C. Circuit.
In further litigation news, last week, the State of Arkansas filed a petition for review of its EPA Regional Haze Rule Federal Implementation Plan (which was issued on September 27, 2016). Arkansas seeks review in the U.S. Court of Appeals for the Eighth Circuit.