Abby L. Harvey
GHG Daily
1/28/2016
Last week’s court order denying a request to stay the Environmental Protection Agency’s carbon emissions standards for existing coal-fired power plants is two pages and less than 400 words long, but the document opens a lot up to speculation, Kyle Danish, a partner at the law firm of Van Ness Feldman, said Wednesday at an event hosted by the Center for Strategic and International Studies.
For a stay to be granted against a regulation, a petitioner must prove that it is likely to win the case against the regulation, and would be subject to irreparable harm without the stay. In its Jan. 21 order the U.S. Court of Appeals for the D.C. Circuit did not specifically address either of these requirements. “It would be interesting to know if the court thought that there wasn’t a likelihood of success on the merits or whether there’s not likely to be irreparable harm during that period. We don’t know. The court simply said that the petitioners had not satisfied the stringent requirements for obtaining a stay,” Danish said during a Center for Strategic and International Studies panel discussion on the Clean Power Plan.
However, in the same document the court ordered an expedited briefing schedule for the lawsuit against the rule attached to the stay request, with oral arguments scheduled to begin June 2. That could mean several things, according to Danish, who specializes in environmental and energy issues. “This is a very fast schedule. It may reflect the court’s view that they were sympathetic that the issue should be resolved quickly in order to avoid harm. It could reflect the view that in the process of reviewing the stay motions, the court has actually gotten a look at a lot of the legal arguments already from these petitioners,” he said.
The Clean Power Plan requires states to develop action plans to meet federally set, state-specific carbon emissions reduction goals. Opponents argue the rule would be extremely costly and would essentially allow the administration to force states to shift from coal to renewable energy. Central to the arguments against the rule is a belief that the EPA is acting outside its authority under the Clean Air Act in promulgating the rule in the first place.
According to the stay request — filed against the EPA by a collective group of nearly 150 entities including states, utilities, and trade groups — even though states do not have to meet any emissions reductions targets until 2020, they would have to invest a significant amount of money ahead of that time, even as the rule goes through the judicial system. If the rule is ultimately overturned, states and utilities will be unable to recover those funds invested in compliance, the stay request said. Had the stay been granted, states would not have had to comply with the rule until it had successfully gone through the full judicial review.
In a last-ditch effort to stay the rule, officials from 27 states earlier this week requested a stay from the U.S. Supreme Court. “I think the conventional wisdom is that that is unlikely to succeed,” Danish said. “That is an extraordinary request with the D.C. Circuit already having looked at the facts here and decided another way. Certainly they’ll take it seriously with two dozen states behind it.”
However, Danish said, the very expedited schedule the petitioners asked for may be the nail in the coffin of their high court stay request. “It’s also possible that the chief justice will look at this briefing schedule and conclude that it is very unlikely that there will be irreparable harm if this can really be resolved this quickly.”
One last interesting piece of information can be gleaned from the D.C. Circuit’s stay request denial, Danish said. “We now found out who the panel will be for this D.C. Circuit case, and it’s an interesting panel. I think this would certainly be a panel that the Obama administration likely is pleased about. We have one judge nominated by President [George H.W.] Bush … and then we have two judges appointed by Democratic presidents. So, on balance, this seems like something that the EPA will see as good news.”
The judges that will be presiding over the case are Karen LeCraft Henderson, Judith Rogers, and Sri Srinivasan.
