Winston’s Environmental Law Update

On July 8, 2019, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register finalizing three discrete rulemaking actions. First, EPA repealed the Clean Power Plan (CPP) promulgated by the Obama Administration on the grounds that the CPP exceeded EPA’s rulemaking authority.

On August 21, 2018, the U.S. Environmental Protection Agency announced its proposed Affordable Clean Energy Rule, which is intended to replace the Obama Administration’s Clean Power Plan.

On November 4, 2016, the Paris Agreement entered into force with 97 countries ratifying it and agreeing to be bound by its terms.  

On September 27, 2016, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in West Virginia v. EPA, the case challenging EPA’s Clean Power Plan. All ten of the active judges on the D.C. Circuit, except for Chief Judge Garland (who has been nominated to the Supreme Court), heard the case. 

On May 16, 2016, the U.S. Court of Appeals for the D.C. Circuit on its own motion issued an order delaying oral argument in West Virginia v. EPA to September 27, 2016. Oral argument in the case, which challenges the Clean Power Plan, was previously scheduled for June 2, 2016. 

On the evening of February 9, the Supreme Court of the United States issued a highly unusual ruling to grant a motion to stay implementation of EPA’s Clean Power Plan (CPP). The stay will remain in effect during the pendency of litigation in the U.S. Court of Appeals for the D.C. Circuit and on subsequent review by the Supreme Court, if a writ of certiorari is sought and granted. 

On the heels of a similar request from more than 28 states, a group of 60 utilities led by Basin Electric Power Cooperative filed an application in the Supreme Court of the United States on January 27 for an immediate stay of EPA’s Clean Power Plan regulations pending review of the rule in the U.S. Court of Appeals for the D.C. Circuit. The utilities filed their application in response to the D.C. Circuit’s denial of their motions for a stay of the rule on January 21. 

Following the United States Court of Appeals for the District of Columbia Circuit’s denial on January 21, 2016, of a request for an emergency stay of the final Clean Power Plan rules, an application for an emergency stay was filed with the Supreme Court of the United States was filed on January 26, 2016, by more than 28 States and state regulators, with West Virginia leading the charge.