On January 26, 2016, 29 states and state agencies, including Oklahoma, Texas, West Virginia, Ohio, Colorado, and Mississippi (the “29 States”), submitted an application (the “29 States Application”) to the United States Supreme Court seeking an immediate stay of the October 23, 2015, final rule of the United States Environmental Protection Agency (“EPA”) titled “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units” (the “Final Rule”).

The move came in response to the D.C. Circuit Court of Appeals’ January 21, 2016, ruling denying an immediate stay of the Final Rule, pending the court’s decision on various parties’ petitions for a review of the legality of the Final Rule.

Due to the D.C. Circuit’s refusal to enter a stay of the Final Rule, the 29 States assert Supreme Court intervention is proper, because “[t]here 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 w[ould] vote to reverse [a] judgment below [upholding the Power Plan]; and (3) a likelihood that irreparable harm will result from the denial of a stay.’” Id. at 13 (citations omitted).

Referring to the Final Rule as an EPA “power grab,” the 29 States explained the requirements for immediate implementation of this dramatic change with economy-wide implications would force states to make monumental and damaging adjustments to their own energy and regulatory regimes as they await a possible court finding that the Final Rule was unlawful at inception.

In the present case, EPA is seeking to similarly circumvent judicial review, but on an even larger scale and this time directly targeting the States. In sworn declarations submitted to the D.C. Circuit below, numerous state regulators describe the [Final Rule] as the most far reaching and burdensome rule EPA has ever forced onto the States. Relying on five words in a rarely-used provision of the [Clean Air Act]—“best system of emission reduction”—EPA claims the authority to require States to achieve massive carbon dioxide emission reductions that EPA has calculated based on “shifting” electric generation away from fossil fuel-fired power plants to other sources of energy—such as wind and solar—that EPA prefers. And because there is no way to meet the Plan’s targets solely by making performance improvements at fossil fuel-fired power plants, it is undisputed that the Plan will force a massive reordering of the States’ mix of generation facilities.


If [the Supreme] Court does not enter a stay, the Plan will continue to unlawfully impose massive and irreparable harms upon the sovereign States, as well as irreversible changes in the energy markets.

Id. at 2-4. (internal citations omitted).

Although the D.C. Circuit declared it would set an expedited schedule, with oral argument to be heard on June 2, 2016, the 29 States assert this does not cure the ills behind the need for a stay. Specifically, this oral argument date means “a decision on the merits is at least half a year away, and likely more. In addition, possible rehearing or rehearing en banc proceedings may take many additional months.” Id. at 48. Thus, the 29 States assert, “[a]n immediate stay from [the Supreme] Court is necessary to prevent the irreversible changes and harms that will continue to occur during the D.C. Circuit proceedings, which could stretch well into 2017.”  Id.

Although the Supreme Court has yet to respond officially to the 29 States Application, Chief Justice Roberts called for a response from the EPA to the 29 States Application by Thursday, February 4, 2016.

In advance of this deadline, four additional petitions were filed by numerous parties, including the state of North Dakota, the U.S. Chamber of Commerce, and Peabody Energy Corporation.

These petitions also request the Supreme Court stay the Final Rule, pending judicial review of the Final Rule. See Coal Industry Application for Immediate Stay of Final Agency Action Pending Judicial Review (filed January 27, 2016); Application of Utility and Allied Parties for Immediate Stay of Final Agency Action Pending Appellate Review (filed January 27, 2016); Application of Business Associations for Immediate Stay of Final Agency Action Pending Appellate Review (filed January 27, 2016); and Application by the State of North Dakota for Immediate Stay of Final Agency Action Pending Appellate Review (filed January 29, 2016).

Baker Hostetler LLP is counsel of record for the State of Oklahoma and Oklahoma Department of Environmental Quality in this matter. Baker Hostetler is also advising clients in both the private and public sectors on the far-reaching impacts of this rule.