24-August-2015

A handful of states are wasting no time opposing the White House’s new Clean Power Plan (CPP), and they’re casting their lot with likeminded energy companies. As detailed in Law360, 15 state attorneys general joined together on August 13 to file “an emergency petition for extraordinary writ seeking to delay the effectiveness of the [CPP’s] various deadlines until litigation over the rule is complete.” The states have asked the petition to be considered by the D.C. Circuit along with CPP challenges submitted by three energy companies—challenges the D.C. panel threw out as “premature” in June. While some view the move as a strategic play by the states to tack onto a case heard by a panel believed to be sympathetic to CPP opponents, Andrew Wheeler, counsel in Faegre Baker Daniels' Washington office and principal for FaegreBD Consulting, said the request to consolidate the matters was driven by a desire for expedience.

“The EPA did not change its legal rationale [for the CPP]—those judges have already been briefed and heard arguments on the case—so part of this is the states and Peabody wanting to get in front of the same panel of judges, since they are already up to speed and can go forward without much delay,” Wheeler said.

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