On June 24, 2016, the United States Court of Appeals for
the District of Columbia granted a motion by opponents of EPA's
Carbon Pollution Standards for New, Modified, and Reconstructed
Power Plants ("New Source Rule") to suspend the briefing
schedule in the case while some of the petitioners appeal EPA's
denial of petitions to reconsider the Rule. See North Dakota v.
EPA, No. 15-1381.
Five parties, including three that are also parties to the case
pending in the D.C. Circuit, asked EPA to reconsider the New Source
Rule on various grounds, including lack of viable carbon capture
technology. On May 6, 2016, EPA denied the petitions for
reconsideration.
Subsequently, several petitioners asked the D.C. Circuit to suspend
the briefing schedule to allow the parties whose petitions were
denied by EPA to file petitions for review in the D.C. Circuit.
Petitioners also asked the court to then consolidate those
petitions with the challenges to the New Source Rule currently
pending in the court, given how closely linked the issues are in
the two cases.
In granting the motion to suspend briefing, the D.C. Circuit panel
ordered that motions to consolidate be filed by July 12, 2016, and
motions to amend the briefing schedule and format be filed no later
than August 4, 2016. The court also stated in its order that
parties "are strongly urged to submit a joint motion and are
reminded that the court looks with extreme disfavor on repetitious
submissions...."
The D.C. Circuit also recently pushed back the schedule in the case
challenging the EPA's closely related Clean Power Plan
("CPP") which, in contrast to the New Source Rule,
applies to existing power plants. Oral argument in that case had
been scheduled for June 2, 2016, after the court granted motions for expedited briefing.
However, on May 16, 2016, the court ordered that oral argument be
rescheduled for September 27, 2016. See West Virginia v. EPA, No.
15-1363.
The court further ordered that the case be heard en banc, rather
than by a three-judge panel as originally scheduled. The CPP
currently is stayed pending resolution of the D.C. Circuit
challenging, under an unusual order issued by the U.S. Supreme
Court in February 2016. That order, on which the Justices split
5–4, was thought to foreshadow the Court eventually striking
down the CPP. However, the unexpected death of Justice Antonin
Scalia, who voted in favor of the stay, has rendered that result
less certain.
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