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States take sides in challenge to EPA's denial of Clean Power Plan petitions

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States take sides in challenge to EPA's denial of Clean Power Plan petitions

A new legal challenge against the Clean Power Plan has been brought by a familiar collection of states that have long opposed the rule. This time the states, led by North Dakota, are challenging a last-minute denial of petitions for reconsideration of the rule.

The U.S. EPA on Jan. 17 denied 38 petitions for review and 22 requests for administrative stay filed against the Clean Power Plan. The agency set aside certain acts of the petitions related to biomass and waste-to-energy facilities because those matters are currently under review.

The petitions and requests for an administrative stay were brought by a number of parties that have been steadfast in their opposition of the Clean Power Plan. They include officials from the states of Alabama, Arkansas, Kansas, Kentucky, Mississippi, Montana, Nebraska, New Jersey, North Dakota, Texas, West Virginia and Wisconsin.

Many of those same states have now alleged in a new legal challenge in the U.S. Court of Appeals for the District of Columbia Circuit that the EPA was outside its authority and acted arbitrarily and capriciously in rejecting the petitions. Besides North Dakota, the challenging states are Alabama, Arkansas, Arizona, Georgia, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, New Jersey, Ohio, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin and Wyoming. Other challengers include Murray Energy Corp., PPL Corp. subsidiary LG&E and KU Energy LLC and the National Rural Electric Cooperative Association. The numerous complaints were consolidated into one challenge in a Jan. 25 order. In the consolidation order, the court also set Feb. 24 as the deadline for a statement of issues to be submitted by the petitioners.

On Jan. 27, a number of states and cities filed to support the EPA in the matter. The states are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington. Also joining the motion to intervene are the District of Columbia, the cities of Boulder, Colo., Chicago, New York, Philadelphia, and South Miami and Broward County, Fla.

The litigation against the Clean Power Plan regulation itself is currently awaiting a decision from the D.C. Circuit. Outside of that litigation, challengers to a Clean Air Act rule can ask the EPA to reconsider it so long as they prove to the agency that their concerns would not have been practicable to raise during a regular public comment period.

The case is State of North Dakota v. EPA, (No. 17-1014).