14 states ask for rehearing of Clean Power Plan case

Source: Jeremy P. Jacobs, E&E reporter • Posted: Monday, August 3, 2015

More than a dozen states today asked a federal appeals court to reconsider its decision allowing U.S. EPA to move ahead with its landmark greenhouse gas standards for existing power plants.

The 14 states requested that the U.S. Court of Appeals for the District of Columbia Circuit rehear its June decision in favor of the agency en banc, meaning before all of the circuit’s judges.

They claim that the proposed Clean Power Plan, which would cut carbon emissions from existing power plants by 30 percent from 2005 levels by 2030, has forced states to take action — and spend money — to prepare for the final rule, which is due to be released sometime this summer.

“Under the panel majority’s decision,” they wrote, “an agency can repeatedly threaten regulated parties to make immediate expenditures to comply with an unlawful but not-yet-final rule, and evade legal accountability for this misconduct.”

A three-judge D.C. Circuit panel rejected their bid to block EPA from finalizing the rule largely on procedural grounds. They held that the challenges were premature because EPA had yet to finalize the rule and, consequently, could still change it.

The Clean Power Plan is a key pillar of President Obama’s efforts to address climate change. It would largely shift the country from coal-based power to energy from renewable sources and natural gas.

Critics of the rule, which include several states and industry groups, are anxiously waiting for it to be finalized, which will likely lead to a flood of new litigation.

States asking for rehearing in the D.C. Circuit case are Alabama, Alaska, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Dakota, West Virginia, Wisconsin and Wyoming.

Separately, the National Federation of Independent Business also filed a petition for rehearing of the same three-judge panel or en banc.

It takes a majority of the D.C. Circuit’s 11 active judges to grant rehearing en banc. The court rarely does so.

Click here for the petition for rehearing.