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Federal Appeals Court Denies CPP Stay, Will Hear Arguments in June

A federal appeals court has denied a motion by 26 states and several power generators to stay implementation of the Obama administration's proposed Clean Power Plan (CPP) until all legal challenges to the plan are resolved. Oral arguments are scheduled for early June.

On Thursday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said the petitioners "have not satisfied the stringent requirements for a stay pending court review." The panel denied a separate motion that certain issues be severed and held in abeyance. It also ordered all parties in the case to file final briefs by April 22, and for them to prepare for oral arguments to begin on June 2.

Twenty-five states and environmental regulators from a 26th state, North Carolina, have sued the U.S. Environmental Protection Agency (EPA) over the CPP, arguing that it is an overreach by the federal regulatory agency. The case is State of West Virginia et al v. EPA et al [15-1363].

"We think it is possible that the D.C. Circuit intends to issue a ruling before the rule's Sept. 6 deadline for states to file their initial State Implementation Plans [SIPs]," ClearView Energy Partners LLC said in a note Thursday. "The court's willingness to hear the case on an expedited schedule represents a compromise...petitioners insist that they need a ruling quickly given the extent of planning required by this rule to limit greenhouse gas emissions from power plants beginning in 2022."

The appellate court has consolidated 38 cases into the case initially filed by West Virginia.

Last August, attorneys general for 15 states filed an emergency petition in federal court, urging it to intervene and postpone the CPP's deadlines (see Daily GPIAug. 14, 2015). They argued that the EPA exceeded its authority and gave states insufficient time (13 months) to design and submit SIPs on how they would replace coal-fired generation with cleaner alternatives, including natural gas.

The CPP embraces renewables and some natural gas, and it calls for states to reduce emissions by 32% below 2005 levels by 2030 (see Daily GPI, Aug. 3, 2015). States would be required to submit a final plan to reduce their emissions by September, but they may request a two-year extension.

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