DC Circuit rejects request to stay Clean Power Plan

A federal appeals court has turned away an effort to delay the planned implementation of the Obama administration’s regulations to limit carbon dioxide emissions from power plants.

The U.S. Court of Appeals for the District of Columbia Circuit rejected Wednesday two petitions to stay the rules filed by a coalition of 15 states and a coal mining company.

“The petitions [are] denied because petitioners have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action,” the order said.

No announcement of the Clean Power Plan has yet appeared in the Federal Register, a step required by a law known as the Administrative Procedure Act before most federal regulations can take effect and by the Clean Air Act before it can be challenged in court.

President Barack Obama announced on Aug. 3 that the planned regulations are in final form. Although the Environmental Protection Agency has not publicly stated when the Clean Power Plan rule will be published, an agency website indicates that it is scheduled to go into effect on Nov. 13.

First proposed for new power plants in Sept. 2013 and for existing facilities in June 2014, the Clean Power Plan would require all power plants, including those that are newly constructed or modified, to limit the amount of carbon dioxide emissions produced when coal and natural gas is burned to produce electricity. The rule would generally delegate to the states the authority to develop and implement regulatory plans to achieve the reduction targets.

One of the petitions denied Wednesday was filed by the states of Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, West Virginia, Wisconsin, and Wyoming. The other was filed by Peabody Energy Corporation.

Both petitions argued that the Clean Power Plan, which is based on a Clean Air Act section that relates to pollution from industrial facilities, is precluded by another section of that law relating to hazardous air pollutants. They also claimed that a delay of the rule is needed because there may be too little time between its publication by EPA and its effective date, which would put affected states and private entities in the position of having to begin work toward compliance before the legality of the regulation is decided by the federal courts.

“The final rule directs States to file plans or detailed “initial submittals” by Sept. 6, 2016,” Peabody’s motion said. “That is barely a year away and an eye-blink in the context of the multi-year planning horizon of energy suppliers, utilities, and private industry.”

The DC Circuit panel that issued Wednesday’s order did not comment on the merits of the arguments advanced by the states and Peabody. However, the same court ruled earlier this summer that the statute relied upon by the states and the coal company as a basis for blocking a federal rule before it takes effect does not affect the procedure for litigation specified by the Clean Air Act.

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