Pencils Down: Briefing Concludes in West Virginia v. EPA

Last Friday, April 15, 2016, petitioners challenging the Clean Power Plan and like-minded intervenors filed their rebuttals to EPA and its supporters’ defense of the rule.  The reply briefs wrap up briefing in West Virginia v. EPA, and set the stage for the D.C. Circuit to hear oral argument in June.

In their 168-page opening brief on the “core legal issues,” petitioners—a collective of 28 states, numerous coal producers, utilities, and trade groups—attack the CPP on four broad grounds, arguing the rule far exceeds EPA’s authority under section 111 of the Clean Air Act (CAA), is in direct conflict with section 112 of the CAA, unlawfully abrogates the CAA’s cooperative federalism system, and unconstitutionally commandeers states into carrying out EPA’s federal policy.  Citing the Supreme Court’s 2014 decision in Utility Air Regulatory Group v. EPA, petitioners urge the court to “greet … with a measure of skepticism” claims by EPA to have “discover[ed] in a long-extant statute an unheralded power to regulate a significant portion of the American economy.”  In a separate opening brief on “procedural and record-based issues,” petitioners also attack the CPP as procedurally deficient.  In the reply briefs filed last week, petitioners further elaborated on their legal and procedural arguments in response to EPA’s brief.

The opening and reply briefs of the intervenors supporting petitioners—a group of six mining and transportation companies–allege similar legal defects with the rule.

Various amici curiae have also offered the court their perspectives on the rule. Amicus curiae briefs supporting petitioners were filed by:

Amici filing briefs in support of EPA include:

With briefing now complete, the parties have just over a month to prepare for oral argument, which is scheduled for June 2-3, 2016.

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