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.
Footnotes
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.
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