By Rich Heidorn Jr.
WASHINGTON — The D.C. Circuit Court of Appeals on Thursday rejected a request to stay the implementation of EPA’s Clean Power Plan while legal challenges are decided.
The decision was not unexpected. The petitioners, PPL’s Louisville Gas & Electric and Kentucky Utilities, had to convince the court both that they were likely to prevail in the challenge and that they would suffer irreparable harm without a stay.
“Petitioners have not satisfied the stringent requirements for a stay pending court review,” a three-judge panel ruled (15-1363).
The judges also rejected a motion in a related case (15-1418) to sever certain issues and hold them in abeyance.
The court ordered the parties to submit a proposed format for briefing of all the issues in the cases by Jan. 27, with initial briefs filed by April 15 and final briefs by April 22.
Oral argument is scheduled for 9:30 a.m. June 2 and could continue into June 3, the court said.
Opponents Hopeful
West Virginia Attorney General Patrick Morrisey said he is considering asking the U.S. Supreme Court to consider the stay request.
“We are disappointed in today’s decision, but believe we will ultimately prevail in court,” Morrisey said in a press release. “The court did not issue a ruling on the merits and we remain confident that our arguments will prevail as the case continues. We are pleased, however, that the court has agreed to expedite hearing the case.”
West Virginia is among 26 states that have joined in the legal challenges, which were filed immediately after EPA published its final rule in the Federal Register in October. (See Legal Debate over Clean Power Plan Takes Center Stage.)
Some observers have suggested the rule’s fortunes in the D.C. Circuit would depend on which three judges were picked to hear the case. It is widely expected, however, that the case will ultimately be decided by the Supreme Court.
Two of the three judges on the panel were appointed by Democrats.
Judge Karen Lecraft Henderson was appointed to the appellate court in 1990 by President George H. W. Bush after about four years as a U.S. District Court judge in South Carolina. Before joining the bench, she served in the South Carolina attorney general’s office after working in private practice in Chapel Hill, N.C.
Judge Judith W. Rogers was appointed to the D.C. Circuit in 1994 by President Bill Clinton to replace Clarence Thomas when he joined the Supreme Court. She formerly worked as an assistant U.S. attorney in D.C. and as the district’s corporation counsel.
Judge Sri Srinivasan was appointed by President Obama in 2013. He is a former law clerk to Supreme Court Justice Sandra Day O’Connor and also worked in the U.S. Solicitor General’s office. Srinivasan also worked on Democrat Al Gore’s legal team during the disputed 2000 presidential election.
32% Reduction
The EPA rule seeks to cut the power sector’s carbon emissions by 32% by 2030, compared with 2005 levels.
The Supreme Court ruled in 2007 that EPA had authority to regulate carbon dioxide. At issue is how the agency defined the “best system of emission reduction (BSER),” the standard set in Section 111(d) of the Clean Air Act. Critics contend that the Clean Power Plan is based on a novel — and improper — interpretation.
Other critics question whether EPA can regulate CO2 under 111(d) because it is also regulated under Section 112 through the Mercury and Air Toxics Standards.
