Last week, twenty states filed a petition for a writ of certiorari, Docket No. 15-1152, asking the Supreme Court to reverse the D.C. Circuit’s decision to remand the Mercury and Air Toxics Standards (MATS) without vacating the rule. The petitioners (the States of Michigan, Alabama, Alaska, Arizona, Arkansas, Idaho, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, West Virginia, and Wyoming and three Texas agencies) foreshadowed that they would be filing for cert in their February application for an interim stay of the Rule; the stay application was denied by Chief Justice Roberts.
At issue is the question of whether, “[w]hen an agency promulgates a rule without any statutory authority, may a reviewing court leave the unlawful rule in place?” The petitioners answer this question in the negative, and ask the Court to vacate the MATS rule in its entirety.
Petitioners allege, among other things, that the D.C. Circuit’s decision not to vacate the rule “conflicts with … and effectively thwarts” the Court’s decision in Michigan v. EPA, 135 S. Ct. 2699 (2015). In Michigan v. EPA, the Court reversed the D.C. Circuit’s ruling upholding MATS and remanded the case back to the lower court on the grounds that EPA acted unreasonably when it deemed cost irrelevant to the decision to regulate power plants and that EPA must consider costs, including cost of compliance, before deciding whether regulation is appropriate and necessary. The Court did not opine, at that time, whether the rule should be vacated, and after full briefing and oral argument, the D.C. Circuit remanded the decision to EPA without vacating the rule.
Petitioners further claim that there is a circuit split on this issue, citing to Fifth and Eighth Circuit decisions vacating agencies’ rules that were found to be “in excess of statutory authority.”
Responses to the petitions are due on April 15, 2016.
In the meantime, EPA is moving forward with its consideration of costs and is scheduled to issue its cost determination in April 2016. Further, on March 17, 2016 EPA finalized certain changes and clarifications to the final MATS rule.