November 11, 2015 Articles

EPA's Clean Power Plan Sets the Stage for a Return to the Supreme Court

It is hard to imagine the High Court deciding not to weigh in.

By Aaron M. Flynn – November 11, 2015

The Clean Power Plan, the far-reaching effort by the U.S. Environmental Protection Agency (EPA) to regulate carbon dioxide (CO2) emissions from existing power plants, has already been the subject of three petitions for extraordinary writs and two petitions for review before the D.C. Circuit, as well as separate proceedings before the U.S. District Court for the Northern District of Oklahoma. These cases were all briefed, argued, and decided before the final Clean Power Plan had even been published—an unusual circumstance in that publication is the nearly universal trigger for litigation concerning federal regulations—and some were, in fact, filed as challenges to the EPA’s proposed rule, a tactic that is almost never seen. The sense of urgency continued once the final rule was published on October 23, 2015. That morning, 19 petitions for review were filed representing challenges to the rule by over 100 parties. In typical litigation over Clean Air Act rules, parties often wait until the sixtieth day after the rule’s publication—the deadline for challenging such rules; in light of that fact, even more petitions for review may still be filed. These aggressive strategies are not likely the new normal in administrative practice; rather, these unusual proceedings reflect the degree of the EPA’s perceived disregard for the requirements of the Clean Air Act and industry’s angst over the incredibly stringent—many would argue impossible—requirements that the Clean Power Plan seeks to impose.

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