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:

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

March 2015

  • Murray Energy Reply Brief
    • In re: Murray Energy Corp., No. 14-1112 & No. 14-1151 (D.C. Circuit)
  • States Reply Brief
    • West Virginia, et al. v. U.S. EPA, No. 14-1146 (D.C. Circuit)
  • EPA Response Brief
    • West Virginia, et al. v. U.S. EPA, No. 14-1146 (D.C. Circuit)
  • Amici Curiae Brief of Trade Associations in Support of Murray Energy
    • In re: Murray Energy Corp., No. 14-1112 & No. 14-1151 (D.C. Circuit)
    • Parties: U.S. Chamber of Commerce, National Association of Manufacturers, American Chemistry Council, and American Fuel and Petrochemical Manufacturers
  • 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

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

November 2015

Winter of 2015-2016

December 2015

  • EPA Opposition to Stay Request
    • State of West Virginia, et al. v. EPA, No. 15-1363 (D.C. Circuit)
  • 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.
  • Intervenor Peabody Energy Corporation Reply Seeking a Stay
    • State of West Virginia, et al. v. EPA, No. 15-1363 (D.C. Circuit)

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.
  • Coal Companies Request Stay from U.S. Supreme Court
    • Murray Energy Corporation, et. al EPA, No. 15A778
    • Parties: Murray Energy Corporation, Peabody Energy Corporation, National Mining Association, American Coalition for Clean Coal Electricity
  • Utilities Request Stay from U.S. Supreme Court
    • Basin Electric Power Cooperative, et al. v. EPA, 15A776
    • Parties: Over 50 utility groups and associations
  • Business Associations Request Stay from U.S. Supreme Court
    • U.S. Chamber of Commerce v. EPA, No. 15A787
    • Parties: U.S. Chamber of Commerce, National Association of Manufacturers, National Federation of Independent Businesses, American Fuel & Petrochemical Manufacturers
  • North Dakota Requests Stay from U.S. Supreme Court
    • North Dakota v. EPA, No. 15A793

February 2016

Spring & Summer 2016

March 2016

  • EPA’s Initial Brief
    • State of West Virginia, et al. v. EPA, Nos. 15-1363-1377 (D.C. Circuit)
  • 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)