For those thinking about where the CPP’s deadlines may land, the Institute for Policy Integrity at the NYU School of Law provides some perspectives in its April 2016 report. The report looks at precedent under the Obama Administration (Cross State Air Pollution Rule), the George W. Bush Administration (Routine Maintenance, Repair, and Replacement exclusion), and the Clinton Administration (NOx SIP Call). The report argues that these examples support EPA’s continued work on the CPP while the stay is pending.
The report also provides an interesting take about a stay versus an injunction, noting that an injunction, which requires supporting reasons, would be a more appropriate basis for arguing that EPA should “put its pencil down.” The report also counters arguments made by Sidley Austin, counsel for certain petitioners in the CPP litigation, in a white paper. The white paper argued that “[t]olling of the deadlines is required by straightforward operation of the Stay.” In contrast, NYU’s report takes the position that the D.C. Circuit may ultimately treat the CPP deadlines differently, and “[a]s a result of the inherent uncertainty about the Plan’s timeline after the stay is lifted, EPA should make a strong effort to provide compliance tools and guidance while the stay is in place.”
Along these lines, a group of states recently asked EPA for “additional information and technical assistance related to the final Clean Power Plan in a manner that is respectful of the Supreme Court’s stay of the regulations until the conclusion of pending litigation.” Recognizing that EPA has already committed to providing assistance as requested, the states ask EPA to provide a final model rule or rules, as well as information on the Clean Energy Incentive Program, tracking systems for allowances or credits, and energy efficiency evaluation, measurement, and verification. Officials from California, Colorado, Connecticut, Delaware, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington signed onto the letter.