The Race to the Courthouse Begins: Fifteen States Seek an Emergency Stay of Clean Power Plan

On August 13, fifteen states filed a petition for an emergency stay of the Clean Power Plan’s deadlines in the D.C. Circuit. The State Petitioners argue that the September 6, 2016 and September 6, 2018 submission dates will cause irreparable harm through “the displacement of sovereign priorities and the steps [states] must take to begin reordering the way their citizens receive and consume energy.” Although the rule has not yet been published in the Federal Register, the State Petitioners allege that waiting for publication could delay relief too far into the period for preparing the September 2016 submission. The State Petitioners request a stay by September 8, 2015.

Because court rules ordinarily require a party seeking a stay to first ask the agency for such relief, the State Petitioners asked EPA for a stay on August 5 and requested relief by August 7. EPA issued no formal action on this request, but in their petition, the states inform the Court that the EPA told them it would not grant relief by their deadline.  The standards for granting a stay pending judicial review are stringent. We will likely see an answer from EPA.

On the other side, 9 states, plus the District of Columbia and New York City, wrote a letter to Administrator McCarthy voicing strong support for the final rules for new and existing power plants. Joined by 6 additional states, this coalition issued a joint statement criticizing the state plaintiffs seeking an emergency stay and pledging to formally oppose requests to stay the final rule, if and when they are timely filed after the rule is published in the Federal Register:

“West Virginia and other states have filed a request to stay the Clean Power Plan, a new federal rule that will protect Americans from the harmful impacts of climate change on our economies, environment, and public health. Like West Virginia’s challenge to the proposed rule, which was dismissed by the courts, this filing is premature. If and when requests to stay the final rule are timely filed, after the rule has been published in the Federal Register, our coalition will formally oppose them.”

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