United States: EPA Creates Ambiguity Regarding Clean Power Plan Compliance Deadlines

Last Updated: April 11 2016
Article by Charles T. Wehland and Alina Fortson

On February 9, 2016, the U.S. Supreme Court issued a stay1 of the U.S. Environmental Protection Agency's ("EPA") final rule, Carbon Pollution Emissions Guidelines for Existing Stationary Sources: Electric Utility Generating Units, known as the Clean Power Plan.2 The Court declared that the rule is stayed pending the disposition of petitions for review currently before the Court of Appeals for the District of Columbia Circuit3 and the disposition of any subsequent petitions for a writ of certiorari in the Supreme Court. Oral arguments before the D.C. Circuit are currently scheduled for June 2, 2016, and an appeal to the Supreme Court is almost certain following the D.C. Circuit's decision. A lift of the stay may therefore not occur until the end 2017 or early 2018. This timeline conflicts with some of the initial deadlines in the Clean Power Plan, including the requirement that states submit implementation plans to EPA by September 2016.

A statement on EPA's website regarding the stay indicates that "EPA firmly believes the Clean Power Plan will be upheld when the merits are considered" and that "EPA will continue to provide tools and support" for states that choose to continue to work on their respective state plans despite the stay.4 EPA has also made statements indicating that it does not expect to change the Clean Power Plan's compliance deadlines, prompting Congress to accuse EPA of leaving state regulators and stakeholders "in the dark" and "in limbo,"5 and to advise governors to avoid implementing the Clean Power Plan until litigation is completed.6 EPA has not yet responded to these letters.

In addition to creating a confusing situation for those charged with implementing the Clean Power Plan, EPA's position is also contrary to recent precedent.

For example, in 2011 the D.C. Circuit granted a stay of EPA's Cross-State Air Pollution Rule ("CSAPR") pending judicial review.7 Following a 2014 Supreme Court decision reversing the D.C. Circuit's vacatur of CSAPR, EPA filed a motion asking the D.C. Circuit to lift the stay and to toll by three years all CSAPR compliance deadlines that had not passed as of the date of the stay order.8 EPA asserted that tolling the compliance deadlines was "equitable," would "truly preserve the status quo," and "would allow for the most orderly implementation of the Rule, while allowing ample lead time for parties subject to the Rule to come into compliance."9 The D.C. Circuit granted EPA's motion.10

In arguing for a tolling of the deadlines in the CSAPR case, EPA relied on the D.C. Circuit decision in Michigan v. EPA.11 In Michigan, the court had granted a stay pending judicial review, which was lifted after the ruling. In its order lifting the stay, the court directed EPA to extend the compliance deadlines in the rule by the same number of days that the stay was in effect:

The original deadline for covered states to submit revised state implementation plans (SIPs) was September 30, 1999. On May 25, 1999 we stayed that deadline pending further order of this court. The purpose of a stay is "to maintain the status quo pending a final determination of the merits of the suit." Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977). At the time of the stay, covered states had 128 days left to submit their SIPs. Having made a final determination of the merits of the suit and denied the petitions for rehearing, and the full court having denied the petitions for rehearing en banc, we lift the stay but hereby order that covered states be given the 128 days, running from the date of issuance of this order, that they had remaining when the stay was imposed. While this grants somewhat more time than EPA's current schedule of September 1, 2000, it does no more than restore the status quo preserved by the stay.12

A similar result was reached in a Tenth Circuit case, Oklahoma v. EPA.13 Petitioners in that matter argued that a stay of a Federal Implementation Plan pending a petition to the Supreme Court was necessary to delay the compliance periods established by that rule, which, if the rule were not stayed, would have required petitioners to move forward with significant and costly facility upgrades.14 EPA acknowledged in that case that the effect of a stay was to extend the relevant compliance dates.15 The court ultimately granted the stay.16

In opposing a stay of the Clean Power Plan, EPA similarly recognized that a stay would necessarily affect compliance deadlines: "Entry of such a 'stay' would mean that, even if the government ultimately prevails on the merits and the Rule is sustained, implementation of each sequential step mandated by the Rule would be substantially delayed."17 Although EPA was not successful in preventing the stay, the agency has failed to expressly acknowledge that compliance deadlines must therefore be postponed. Confirmation from EPA is needed to provide clarity to the regulated community and to state regulators responsible for executing the Clean Power Plan.


1 Case Nos. 15A773, 15A776, 15A778, 15A787, and 15A793.

2 80 Fed. Reg. 64662 (Oct. 23, 2015).

3 Case No. 15-1363.

4 EPA, "Clean Power Plan for Existing Power Plants."

5 Letter to the Honorable Gina McCarthy, Administrator, U.S. EPA, from Jim Inhofe, Chairman, U.S. Senate Committee on Environment and Public Works (Mar. 10, 2016).

6 Letter to the National Governors Association from Mitch McConnell, U.S. Senate Majority Leader (Mar. 21, 2016).

7 Case No. 11-1302, Doc. No. 1350421 (Dec. 30 2011).

8 Case No. 11-1302, Doc. Nos. 1499505 (June 26, 2014) and 1508914 (Aug. 22, 2014).

9 Case No. 11-1302, Doc. No. 1499505 (June 26, 2014).

10 Case No. 11-1302, Doc. No. 1518738 (Oct. 23, 2014).

11 Case No. 98-1497.

12 Case No. 98-1497, June 22, 2000 Order.

13 Case Nos. 12-9526 and 12-9527.

14 Case Nos. 12-9526 and 12-9527, Doc. Nos. 01019153450 (Nov. 6, 2013) and 01019161973 (Nov. 22, 2013).

15 Case Nos. 12-9526 and 12-9527, Doc. No. 01019157592 (Nov. 15, 2013).

16 Case Nos. 12-9526 and 12-9527, Doc. No. 01019180253 (June 2, 2014).

17 Memorandum for the Federal Respondents in Opposition to Applications for Immediate Stay of Final Agency Action, Case Nos. 15A773, 15A776, 15A778, 15A787, and 15A793.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions