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Court issues indefinite hold in 111(b) litigation

From the August 14, 2017 issue of Public Power Daily

Originally published August 11, 2017

By Jeannine Anderson
News Editor

A federal appeals court on Aug. 10 put an indefinite hold on litigation challenging the Environmental Protection Agency’s final rule on carbon dioxide emissions from new, modified, and reconstructed electric generating units. This rule, known as the new plant rule, was issued in October 2015, at the same time the EPA issued its final Clean Power Plan for existing power plants.

In its Aug. 10 order, the U.S. Court of Appeals for the District of Columbia Circuit directed that the case, State of North Dakota v. Environmental Protection Agency (Case No. 15-1381), and more than a dozen consolidated cases, “remain held in abeyance pending further order of the court.”

Two days earlier, the same appeals court issued an order putting other litigation concerning the Clean Power Plan on an additional 60-day hold: West Virginia et. al., v. EPA. That litigation focuses on the EPA’s final rule on CO2 emissions from existing power plants, written under Clean Air Act Section 111(d).

Court calls for status reports every 90 days

In its Aug. 10 order on the Section 111(b) litigation, the D.C. Circuit directed the parties in the case to file status reports every 90 days and to file motions to govern further proceedings within 30 days of the conclusion of the EPA’s proceedings on the rule. The EPA’s first status report is due on Oct. 27, 2017.

The EPA issued its final Clean Power Plan in the fall of 2015. This included its rule on existing power plants under Section 111(d) of the CAA and the rule on new, existing and reconstructed power plants, issued under Section 111(b). The rulemaking package also included a proposed Federal Plan and Model Trading Rules.

In early 2016, the Supreme Court issued a stay of the EPA rule on existing power plants while the fight over the contentious rule works its way through the courts.

In contrast to the 111(d) rule, the 111(b) rule has never been stayed and remains in effect.

An executive order issued by President Trump in March 2017 directed the EPA to review, revise or repeal the Clean Power Plan and other energy-related regulations, including the new plant rule. The order called for the heads of federal agencies to conduct an “immediate review” of all existing regulations, orders and policies “that potentially burden the development or use of domestically produced energy resources.” In June, the EPA followed up on that order by sending its Clean Power Plan review proposal to the federal Office of Management and Budget.

On March 30, shortly after President Trump’s order calling for the EPA to review and possibly rescind the Clean Power Plan, the D.C. Circuit canceled oral arguments that had previously been scheduled for April 17 in the Section 111(b) case. Shortly after the oral arguments were cancelled, the EPA filed a motion asking the D.C. Circuit to hold the litigation in abeyance.

Section 111(b) offers backdoor to get at Section 111(d)

More than two dozen states are taking part in the litigation against the Clean Power Plan in the case West Virginia et. al., v. EPA, that focuses directly on the Section 111(d) rule for existing power plants.

The court fight over the Section 111(b) rule for new, modified or reconstructed power plants provides another potential, more indirect way of defeating the Clean Power Plan rule for existing power plants.

As the Washington Post reported last year, the EPA “is required to promulgate standards for new sources before it may impose standards on existing sources under 111(d).”  

If a court decision strikes down the Section 111(b) rule, this could cause the rest of the Clean Power Plan either to be put on hold, or to fall.

More than two dozen states, as well as other interested parties, including the American Public Power Association and the Utility Air Regulatory Group, have taken part in litigation challenging the Section 111(b) rule.



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