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.
Various amici curiae have also offered the court their perspectives on the rule. Amicus curiae briefs supporting petitioners were filed by:
- 166 state and local business associations;
- 34 Senators and 171 Representatives;
- 60Plus Association, Federalism in Action, Hispanic Leadership Fund, Independent Women’s Forum, National Taxpayers Union, and Taxpayers Protection Alliance;
- Climate scientists;
- Former state public utility commissioners;
- Landmark Legal Foundation;
- Municipal Electric Authority of Georgia;
- Pacific Legal Foundation, Texas Public Policy Foundation, Morning Star Packing Company, Merit Oil Company, the Loggers Association of Northern California, and Norman R. “Skip” Brown (private citizen);
- Pedernales Electric Cooperative, Inc.;
- Philip Zoebisch (private citizen);
- The State of Nevada and Consumers’ Research; and
- Southeastern Legal Foundation.
Amici filing briefs in support of EPA include:
- Adobe, Inc.; Mars, Inc.; Ikea North America Services LLC, and Blue Cross and Blue Shield of Massachusetts, Inc.;
- Amazon, Apple, Google, and Microsoft;
- Citizens Utility Board; Consumers Union; and Public Citizen, Inc.;
- Climate scientists;
- Current and former Members of Congress;
- Dominion Resources, Inc.;
- Former EPA Administrators William D. Ruckelshaus and William K. Reilly;
- Former Secretary of State Madeleine Albright, former Secretary of Defense Leon Panetta and former Deputy Secretary of State William Burns;
- Former state environmental and energy officials;
- Grid experts;
- Health and medical associations;
- Leon Billings and Thomas Jorling (former United States Senate staff members and environmental law and policy experts responsible for the drafting and deliberations that resulted in the 1970 Clean Air Act Amendments);
- National League of Cities, the U.S. Conference of Mayors, and 54 cities, counties and mayors;
- New York University School of Law Institute for Policy Integrity;
- Religious groups;
- Service Employees International Union;
- Sustainable business organizations; and
- Union of Concerned Scientists.
With briefing now complete, the parties have just over a month to prepare for oral argument, which is scheduled for June 2-3, 2016.