August 05, 2013 Articles

Supreme Court Grants Certiorari in CSAPR Case

It remains to be seen how this unpredictable Court will ultimately rule on the merits of the Transport Rule.

By David F. Williams and Sohair A. Aguirre – August 5, 2013

In a case closely watched by a wide array of industry, labor, environmental, and government stakeholders, on June 24, 2013, the U.S. Supreme Court granted the petition of the U.S. Environmental Protection Agency (EPA) for a writ of certiorari to review the August 2012 decision of the D.C. Circuit striking down the EPA’s far-reaching Cross-State Air Pollution Rule (CSAPR or the “Transport Rule”). EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), reh’g and reh’g en banc denied, No. 11-1302 (D.C. Cir. Jan. 24, 2013); EPA v. EME Homer City Generation, L.P.cert. granted (U.S. June 24, 2013) (No. 12-1182). The Court granted two separately filed petitions for writs of certiorari (EPA v. EME Homer City, No. 12-1182, and Am. Lung Ass’n v. EME Homer City, No. 12-1183) limited to the questions presented by the EPA’s petition in No. 12-1182. The Court consolidated the cases and allotted a total of one hour for oral argument.

A brief glance at the identity of the parties filing briefs supporting and opposing the EPA’s certiorari petition underlines the breadth of interest in the CSAPR and this litigation. Two groups of parties filed briefs in support of the EPA’s petition: a group of 15 states and cities and, in addition, Calpine Corp. and Exelon Corp. The Court granted the petition over the objections of two groups of parties that filed opposition briefs: a group of 34 utilities, power generators, coal companies, and labor organizations, and a group of 17 states and cities.

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