The Clean Power Plan and its surrounding litigation has quickly become one of the hottest topics both inside and outside the legal world. News that the U.S. Supreme Court had granted a stay of the Clean Power Plan on February 9, 2016 spread like wildfire, but many recent followers are unaware of just how long and polemic the history of litigation over the Clean Power Plan has been.

Given the considerably strong interest, this article provides a short history of the litigation surrounding the Clean Power Plan, along with links to motions, briefs, and orders, dating back to when Murray Energy Corporation filed the first challenge to the proposed rule. The history is actually anything but short and is also far from being over.

Summer of 2014

June 2014:

  • Murray Energy Petition for Extraordinary Writ Prohibiting Rulemaking
    • In re: Murray Energy Corp., No. 14-1112 (D.C. Circuit)
    • Argument: Petition for extraordinary writ prohibiting ultra vires rulemaking, challenging EPA’s use of Clean Air Act Section 111(d) to regulate coal-fired power plants that are already subject to Section 112 standards, filed the same day the notice of proposed rulemaking is published in the Federal Register.

August 2014:

  • States’ Petition for Review Challenging Settlement Agreement
    • West Virginia, et al. v. U.S. EPA, No. 14-1146 (D.C. Circuit)
    • Parties: West Virginia, Alabama, Indiana, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Dakota, South Carolina, Wyoming, Kentucky
    • Argument: Petition for Review challenging the settlement agreement where EPA committed to regulating coal-fired power plants under Section 111(d) even after EPA subjected them to Section 112 standards once the controversy ripened as a result of the commencement of the rulemaking.
  • Murray Energy Petition for Judicial Review of EPA Legal Conclusion
    • Murray Energy Corp. v. U.S. EPA, No. 14-1151 (D.C. Circuit)
    • Argument: Petition seeking judicial review of EPA’s unequivocal conclusion in a legal memorandum and a preamble to the notice of proposed rulemaking that coal-fired power plants can be regulated under Section 111(d) even though they are already subject to Section 112 standards.

Fall & Winter 2014-2015

September 2014

October 2014

November 2014

December 2014

February 2015

  • Brief of States Intervening in Support of EPA
    • West Virginia, et al. v. U.S. EPA, No. 14-1146 (D.C. Circuit)
    • Parties: States of California, New York, and Massachusetts, Maine, Connecticut, Delaware, New Mexico, Oregon, Washington, Rhode Island, Vermont, District of Columbia, and the City of New York

March 2015

  • Amici Curiae Brief of Groups in Support of States
    • West Virginia, et al. v. U.S. EPA, No. 14-1146 (D.C. Circuit)
    • Parties: Pacific Legal Foundation, Trade Associations (U.S. Chamber of Commerce, National Association of Manufacturers, American Chemistry Council, American Coatings Associations, American Fuel and Petrochemical Manufacturers, American Iron and Steel Institute, Council of Industrial Boiler Owners, Independent Petroleum Association of America, and Metals Service Center Institute)

Spring 2015

April 2015

  • Oral Argument
    • West Virginia, et al. v. U.S. EPA, No. 14-1146 (D.C. Circuit)
    • In re: Murray Energy Corp., No. 14-1112 & No. 14-1151 (D.C. Circuit)
    • Panel: The Honorable Judges Henderson, Thomas B. Griffith, and Brett M. Kavanaugh

Summer 2015

June 2015

  • D.C. Circuit Denies Petitions on Procedural Grounds
    • Murray Energy Corp. v. U.S. EPA, Nos. 14-1112, 14-1151 (D.C. Circuit)
    • West Virginia, et al. v. U.S. EPA, No. 14-1146 (D.C. Circuit)
    • Opinion for the Court: The Honorable Judge Brett M. Kavanaugh, joined by The Honorable Judge Thomas B. Griffith
    • Opinion concurring in the judgment: The Honorable Judge Karen L. Henderson

August 2015

  • Emergency Petition for Extraordinary Writ to Stay Final Rule Filed by 16 States
    • In re West Virginia, et al., No. 15-1277 (D.C. Circuit)
    • Parties: States of West Virginia, Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, Wisconsin, and Wyoming with Movant-Intervenor South Carolina
    • Argument: Asking that the D.C. Circuit stay the rule pending resolution of the challenges regarding the rule’s legality before publication in the Federal Register.
  • Renewed Emergency Petition for Extraordinary Writ to Stay Final Rule
    • In re Peabody Energy Corporation, No. 15-1284 (D.C. Circuit)
    • Parties: Peabody Energy Corporation and Murray Energy Corporation
    • Argument: Asking that the D.C. Circuit stay the rule pending resolution of the challenges regarding the rule’s legality before publication in the Federal Register.

Fall of 2015

September 2015

  • D.C. Circuit Order Denying Stay Requested
    • In re West Virginia, et al., Nos. 15-1277 & 15-1284 (D.C. Circuit)
    • Per Curiam Order: The Honorable Judge Karen L. Henderson, Judith W. Rogers, and Thomas B. Griffith

October 2015

  • 26 States File Petition for Review and Motion to Stay Final Rule and Expedite Briefing in D.C. Circuit
    • State of West Virginia, et al. v. EPA, No. 15-1363 (D.C. Circuit)
    • Parties: Texas, West Virginia, Alabama, Arizona Corporation Commission, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Louisiana Dept. of Environmental Quality, Attorney General Bill Schuette of Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina Dept. of Environmental Quality, Ohio, South Carolina, South Dakota, Utah, Wisconsin, and Wyoming
  • Trade Associations File Petitions for Review and Motion to Stay Final Rule
    • U.S. Chamber of Commerce, et al. v. EPA, No. 15-1382 (D.C. Circuit)
    • Parties: U.S. Chamber of Commerce, National Association of Manufacturers, American Fuel & Petrochemical Manufacturers, National Federation of Independent Business, American Chemistry Council, American Coke and Coal Chemicals Institute, American Foundry Society, American Forest & Paper Association, American Iron and Steel Institute, American Wood Council, Brick Industry Association, Electricity Consumers Resource Council, Lignite Energy Council, National Lime Association, National Oilseed Processors Association, Portland Cement Association
  • Utilities File Petitions for Review and Motion to Stay Final Rule
    • Utility Air Regulatory Group, et al. v. EPA, Nos. 15-1370 – 15-1377 (D.C. Circuit)
    • Parties: Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, CO2 Task Force of the Florida Electric Power Coordinating Group, Inc., International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, Montana-Dakota Utilities Co., National Rural Electric Cooperative Association, NorthWestern Corporation, Tri-State Generation and Transmission Association, Inc., United Mine Workers of America, Westar Energy, Inc.

November 2015

Winter of 2015-2016

December 2015

  • Reply of States Seeking Stay
    • State of West Virginia, et al. v. EPA, No. 15-1363 (D.C. Circuit)
    • Parties: Texas, West Virginia, Alabama, Arizona Corporation Commission, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Louisiana Dept. of Environmental Quality, Attorney General Bill Schuette of Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina Dept. of Environmental Quality, Ohio, South Carolina, South Dakota, Utah, Wisconsin, and Wyoming
  • Reply of Coal Industry, Utilities, Trade Associations, and Labor Seeking Stay
    • State of West Virginia, et al. v. EPA, No. 15-1363 (D.C. Circuit)
    • Parties: Murray Energy Corporation, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Utility Air Regulatory Group, American Public Power Association, U.S. Chamber of Commerce, National Rural Electric Cooperative Association, National Mining Association, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Basin Electric Power Cooperative, CO2 Task Force of the Florida Electric Coordinating Group, Inc., Luminant Generation Company, Oak Grove Management Company, Big Brown Power Company, Sandow Power Company, Big Brown Lignite Company, Luminent Mining Company, Big Grown Mining Company, Montana-Dakota Utilities Co., United Mine Workers of America, National Federation of Independent Business, Energy & Environmental Legal Institute, and many, many more.

January 2016

  • D.C. Circuit Denial of Stay Request and Grant of Expedited Briefing
    • State of West Virginia, et al. v. EPA, Nos. 15-1363-1377 (consolidated)
    • Per Curiam Order: The Honorable Judges Karen L. Henderson, Judith W. Rogers, and Sri Srinivasan, denying motions to stay the rule, but granted expedited briefing to be completed by April 22, 2016 and scheduling oral arguments in the D.C. Circuit for June 2, 2016.
  • States Request Stay from U.S. Supreme Court
    • State of West Virginia, et al. v. EPA, No. 15A773
    • Parties: 29 states and state agencies, including: States of Texas, West Virginia, Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Mississippi Dept. of Environmental Quality, Mississippi Public Serve Commission, Missouri, Montana, Nebraska, New Jersey, North Carolina Dept. of Environmental Quality, Ohio, State of Oklahoma, Oklahoma Dept. of Environmental Quality, South Carolina, South Dakota, Utah, Wisconsin, and Wyoming
    • Argument: Arguing that there is (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.

February 2016

  • Amici and Intervenors in Support of Respondent EPA
    • Public Entities Supporting EPA
      • Parties: States of New York, California, Connecticut, Delaware, Hawai‘i, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Virginia, Washington, the District of Columbia, the Cities of Boulder, Chicago, New York, Philadelphia, and South Miami, and Broward County, Florida
  • Environmental Organizations Supporting EPA
    • Parties: NextEra Energy, Inc., Solar Energy Industries Ass’n, Calpine Corporation, the City of Austin d/b/a Austin Energy, the City of Los Angeles, by and through its Department of Water and Power, The City of Seattle, by and through its City Light Department, National Grid Generation, LLC, New York Power Authority, Pacific Gas and Electric Company, Sacramento Municipal Utility District, Southern California Edison Company, American Wind Energy Association, Advanced Energy Economy, NRDC, EDF, Sierra Club, American Lung Association, Clean Air Council, Clean Wisconsin, Conservation Law Foundation, Center for Biological Diversity, Ohio Environmental Council, West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, Coal River Mountain Watch, Kanawha Forest Coalition, Mon Valley Clean Air Coalition, and Keepers of the Mountains Foundation

Spring & Summer 2016

March 2016

  • Amicus Brief in Support of EPA
    • State of West Virginia, et al. v. EPA, Nos. 15-1363-1377 (D.C. Circuit)
    • Parties: States of New York, California, Connecticut, Delaware, Hawai’i, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and Washington; the District of Columbia, the Cities of Boulder, Chicago, New York, Philadelphia, and South Miami, and Broward County, Florida

What’s Next?

April 2016

  • All Parties’ Final Briefs Due
    • State of West Virginia, et al. v. EPA, Nos. 15-1363-1377 (D.C. Circuit)

June 2016

  • Oral Arguments
    • State of West Virginia, et al. v. EPA, Nos. 15-1363-1377 (D.C. Circuit)