As widely reported, in late October more than two dozen states, along with numerous private plaintiffs, brought challenges to EPA’s controversial Clean Power Plan (CPP) final rule that was issued under the stated authority of Section 111 of the Clean Air Act. Perhaps encouraged by the Sixth Circuit’s October 9, 2015, imposition of a stay in the “Waters of the United States” litigation (in which 31 states and a number of private parties have challenged another controversial EPA final rule, this one issued pursuant to the Clean Water Act), the CPP opponents are seeking a stay of implementation of the CPP final rule pending final adjudication of their challenges on the merits.
The plaintiffs’ motions for stay argue that: (a) the plaintiffs will likely prevail on the merits; (b) absent a stay, coal mining operators, coal workers and coal-dependent communities will be irreparably harmed; (c) conversely, if a stay is granted, no parties will be harmed; and (d) a stay is in the public interest. EPA’s opposition brief, filed on December 3, takes exactly the opposite stance. EPA argues that: (a) it has clear authority to issue the Clean Power Plan rule, (b) the plaintiffs will suffer no harm if a stay is not issued and (c) the public interest will benefit if implementation of the rule is not delayed.
Briefing will conclude on December 23, 2015, and will be followed by (as yet unscheduled) oral argument. With so much at stake (the CPP, for some states, requires the implementation of major changes in electricity generation), an early review of the plaintiffs’ likelihood of prevailing on the merits —if the court reaches that issue—will be front-page news.