Given that the states will do the heavy lifting to come into compliance with EPA’s Clean Power Plan (CPP) to reduce carbon emissions from fossil fuel power plants (October 23, 2015, Federal Register), it seems fitting that the states also intend to assume major roles in the upcoming legal slugfest over the CPP, which will be referred by the U.S. Court of Appeals for the D.C. Circuit. So far, in two actions, 39 states are either petitioning the D.C. Circuit to vacate the CPP or requesting that the court allow them to intervene on behalf of the Agency in defense of the rule.
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The initiating action was taken by 23 states that asked the D.C. Court to consider their arguments that the rule is unlawful. In their petition to stay the rule, the states say that the CPP rests on EPA’s claim that it may disfavor and phase out certain kinds of energy generation and force states to reorganize how they produce, transmit, and consume electricity.
Shortly after the petition was filed, a motion to intervene in the case was filed with the court by 16 other states, the District of Columbia, and the City of New York. As intervenors, the states had to explain why they should be involved in the litigation.