The United States Court of Appeals for the District of Columbia Circuit on July 19 denied motions to stay the U.S. Environmental Protect Agency’s Power Sector Greenhouse Gas Rule for New and Existing Sources, which was published on May 9.
The court will instead set an expedited briefing schedule so the case will be argued in this 2024 term.
Final rule implementation efforts will continue until the court issues a final decision on the case's merits unless parties seek and receive a stay from the U.S. Supreme Court.
On May 9, a coalition of 25 states, led by West Virginia, filed a petition for review in the D.C. Circuit. Twelve other petitions for review have been consolidated with the West Virginia petition. Eight motions to stay the Final Rule were filed from May 13, 2024, through May 24, 2024.
To obtain a judicial stay, the parties must show that there is a likelihood they will prevail on the merits of the case. They must show irreparable harm will occur absent a stay. Other factors for consideration are whether the nonmoving parties will suffer irreparable harm if the court grants the stay and if the public’s interest is in granting a stay.
The movants presented a set of issues on the merits. Topics included limits to EPA’s rulemaking authority, the major questions doctrine, technical arguments regarding the infeasibility of carbon capture and sequestration, cooperative federalism, and failure to consider costs. As for harm, movants presented facts showing the imminency of cost expenditures and reliability implications.
In its opinion denying the stay, the court supports the denial, saying that the petitioners have not shown they are likely to succeed on the merits and that the harm alleged by petitioners would not be redressed by a stay.
The D.C. Circuit ordered an expedited briefing schedule as an alternate means of protecting all parties’ interests, consistent with EPA’s proposal.
To achieve this, the court has ordered the parties to submit proposed formats and schedules for briefing the cases in 14 days.
The movants can submit applications to the U.S. Supreme Court for further consideration of the motion for stay.
In the meantime, states and utilities will continue to pursue implementation efforts on Clean Air Act Section 111 state plans.
