On August 1, 2014, several states petitioned the United States Court of Appeals for the District of Columbia Circuit for review of a final settlement agreement between United States Environmental Protection Agency and various other states, governmental entities, and private organizations. Pursuant to the settlement agreement, EPA committed to proposing and finalizing a rule requiring states to regulate existing coal-fired power plants under Section 111(d) of the Clean Air Act ("CAA"). On June 18, 2014, EPA issued a proposed rule regulating greenhouse gas emissions from existing coal-fired power plants under Section 111(d).
In the petition for review, the petitioner-states argue that certain intervening events following execution of the settlement agreement, but before EPA issued its proposed rule of June 18, 2014, rendered unlawful EPA's regulation of existing coal-fired power plants under Section 111(d). Namely, the petitioners argue that EPA's February 26, 2012 rule finalizing regulations for stationary sources, including coal-fired power plants, under the hazardous air pollutants program of Section 112 of the CAA, did not permit EPA to regulate those same stationary sources under Section 111(d) because the United States Supreme Court held in American Electric Power, Inc. v. Connecticut, 131 S. Ct. 2527 (2011), that EPA may not regulate a pollutant under Section 111(d) if existing stationary sources of the pollutant in question are regulated under Section 112 of the CAA.
Despite the fact that the settlement was finalized in 2011 and the CAA provides for only a 60-day review period, the petitioners argue that their petition is timely under a recognized exception to the rule when a claim is based solely on grounds occurring after the statutory 60-day review period. Petitioners contend their claim did not ripen until EPA issued its June 2, 2014 legal memorandum setting out its final position regarding its purported legal authority to propose and adopt a rule for existing coal-fired plants under Section 111(d).
Shortly after the petition for review was filed, on September 2, 2014, several private organizations and states that were parties to the original 2011 settlement agreement filed unopposed motions to intervene, arguing, among other things, that as parties to the settlement agreement, they have a legitimate interest in participating in an action challenging that settlement agreement. The motions to intervene were granted on October 2, 2014.
The parties currently are debating the timeline for the case moving forward. On September 3, 2014, the petitioner-states filed a motion to set a consolidated briefing schedule and to expedite consideration. In the motion, they assert that the states will suffer irreparable injury if the case is not expedited because, due to the complex nature of EPA's Section 111(d) rulemaking, states as well as stakeholders must begin immediately to develop and implement procedures pursuant to the proposed power-plant rule. On the same day, EPA filed a motion to extend time to file dispositive motions and record, arguing that there are substantial jurisdictional issues that need to be briefed. Each party has filed an opposition to the other party's scheduling motion. The court has not yet ruled on the motions, so the schedule in this matter is still unclear. In the interim, however, EPA will continue moving forward with its Section 111(d) rulemaking.
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