Chamber of Commerce, et al. v. EPA (ESPS Rule)

U.S. Court of Appeals for the District of Columbia Circuit

Tab Group

U.S. Chamber's Position

The U.S. Chamber, joined by over a dozen business groups, filed a lawsuit in the U.S. Court of Appeals for the D.C. Circuit to challenge the Environmental Protection Agency’s (EPA) rule regulating greenhouse gas emissions under Section 111(d) of the Clean Air Act—an unprecedented takeover of the electricity sector. Because the rule is already causing irreparable harm to businesses and communities across the country, the Chamber also asked the D.C. Circuit to stay implementation of the rule until judicial review has been completed, and asked the court for expedited review. The D.C. Circuit granted expedited review, and the U.S. Supreme Court granted a stay.

The Chamber argues that the rule is unlawful and a bad deal for America. It will drive up electricity costs for businesses, consumers and families, impose tens of billions in annual compliance costs, and reduce our nation’s global competitiveness—without any significant reduction in global greenhouse gas emissions. According to EPA’s own predictions, if this rule had been allowed to go into effect on EPA’s schedule, numerous electricity plants would have been forced to shut down within the next year, causing job losses in communities throughout the country.

The Chamber has argued that EPA failed to take into account the serious concerns expressed by states and industry regarding the rule’s implementation, fairness, and legality. The Chamber supports further environmental progress guided by what has already worked: gains in efficiency, new technologies, market-based increases in the use of natural gas and renewable fuels, a continued role for nuclear power, and improved processes for developing and using our nation’s vast coal and oil and gas resources. Indeed, the United States is the only major country that has actually and substantially reduced its CO2 emissions while continuing to grow its economy.

The Chamber also argues that not only are these regulations bad for our economy, they also represent a massive executive power grab. EPA completely bypassed the legislative branch, basing its 2,000-page rule on roughly 300 words in the Clean Air Act and including a host of policies that have already been considered and rejected by Congress.

In this case, the U.S. Chamber and its coalition partners are represented by Peter D. Keisler, Roger R. Martella, Jr., C. Frederick Beckner III, Ryan C. Morris, Joel F. Visser, and Paul J. Ray of Sidley Austin LLP.

The Chamber's lawsuit has been consolidated with State of West Virginia, et al. v. EPA, the lead caption for the consolidated litigation challenging ESPS.

Procedural History

PROCEDURAL OVERVIEW OF RELATED CARBON RULE LAWSUITS

  • CHAMBER-LED COALITION OF 16 TRADE ASSOCIATIONS. The Chamber is the lead petitioner in a coalition of 16 national trade associations challenging the final power plant greenhouse gas regulations. These trade associations represent nearly every sector of the economy. The Chamber has been joined in its lawsuit by the National Association of Manufacturers, American Fuel and Petrochemical Manufacturers, National Federation of Independent Business, American Chemistry Council, American Coke and Coal Chemicals Institute, American Foundry Society, American Forest and Paper Association, American Iron and Steel Institute, American Wood Council, Brick Industry Association, Electricity Consumers Resource Council, Lignite Energy Council, National Lime Association, National Oilseed Processors Association and Portland Cement Association. The caption is Chamber of Commerce, et al. v. EPA, No. 15-1382. The lead attorney for the Chamber-led coalition is Peter Keisler (Sidley Austin), who successfully argued the last two greenhouse gas cases at the U.S. Supreme Court, UARG, Chamber, et al. v. EPA and AEP v. Connecticut, et al.
  • STATE AND STATE-AGENCY PETITIONERS. All told, approximately 30 states or state agencies have challenged the Clean Power Plan as petitioners. A coalition of 24 states filed a lawsuit challenging the ESPS regulations and seeking a stay. The states listed in this lawsuit include: West Virginia, Texas, Alabama, Arizona Corporation Commission, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana & Louisiana DEQ, Attorney General Bill Schuette on behalf of the People of Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina DEQ, Ohio, South Carolina, South Dakota, Utah, Wisconsin, and Wyoming. The caption is West Virginia, et al. v. EPA, No. 15-1363.The state of Oklahoma filed an independent petition seeking review of the ESPS regulations. The caption is Oklahoma v. EPA, No. 15-1364. The state of North Dakota filed an independent petition seeking review of the ESPS regulations. The caption is North Dakota v. EPA, No. 15-1380. The state of Mississippi's Department of Environmental Quality filed an independent petition seeking review of the ESPS regulations. The caption is Mississippi Department of Environmental Quality v. EPA, No. 15-1409.
  • OTHER BUSINESS, LABOR, THINK TANK, AND TRADE ASSOCIATION PETITIONERS. Other business and labor groups and individuals also challenged the ESPS regulations, including the United Mine Workers, the AFL-CIO, the Association of American Railroads, the National Mining Association, the Utility Air Regulatory Group, the National Rural Electric Cooperative Association, and many others. 
  • CONSOLIDATED LAWSUITS. The D.C. Circuit has consolidated the U.S. Chamber, et al. petition for review (docket No. 15-1382) with the lead petition brought by West Virginia, Texas, et al. (docket No. 15-1363), along with the other 37 petitions filed. All told, at least 160 different petitioners have challenged the Clean Power Plan, among them approximately 30 states and state agencies, 1 local government, 8 labor unions, 10 mining companies, 71 power companies, 6 think tanks, and 25 trade associations. A chart of the D.C. Circuit petitioners and intervenors-supporting-petitioners is available here.

D.C. CIRCUIT MERITS BRIEFING

Oral Argument Format Proposals

Petitioner and Petitioner-Intervernor Reply Briefs

Amicus Briefs in Support of Respondents

Respondent and Respondent-Intervenors Briefs

  • Respondent-Intervenors State and Local Governments' merits brief filed 3/29/2016.
  • Respondent-Intervenors Environmental and Public Health Organizations' merits brief filed 3/29/2016.
  • Respondent-Intervenors Advanced Energy Association, et al.'s merits brief filed 3/29/2016.
  • Respondent-Intervenors Power Companies' merits brief filed 3/29/2016.

Amicus Briefs in Support of Petitioners and Intervenors

 

Petitioners and Petitioner-Intervenor's Opening Briefs

 

Procedural Briefing (e.g. proposed merits briefing schedules)

  • Joint State and Non-State Petitioners' proposed briefing schedule filed 1/27/2016
  • EPA response and Respondent-Intervenors' response in opposition to Petitioners' proposed briefing schedule filed 12/18/2015.

 

D.C. CIRCUIT BRIEFING OF MOTIONS FOR STAY AND EXPEDITION

  • Please note that although the D.C. Circuit denied the stay motion, on 2/9/2016, the U.S. Supreme Court granted a stay of the rule pending judicial review. The Supreme Court's stay of the rule will remain in force through the period of judicial review. For details and briefing of the Supreme Court stay applications, please visit this page. 


U.S. Chamber, et al. Coalition's D.C. Circuit Stay/Expedition Motion


States' D.C. Circuit Stay Motions

  • States of West Virginia, Texas et al. motion for stay and petition for review filed 10/23/15.
  • State of Mississippi's Department of Environmental Quality's corrected motion for stay filed 11/6/2015.


Other Industry D.C. Circuit Stay Motions and Responses in Support

  • National Mining Association (NMA), et al. motion for stay and petition for review filed 10/23/2015.
  • Utility Air Regulatory Group (UARG), et al. motion for stay and petition for review filed 10/23/2015. Supplemantal declarations filed 11/5/2015.


Intervenors in Support of Stay Motions / In Support of State and Industry Petitioners

 

EPA Opposition to D.C. Circuit Stay Motions

Intervenors in Opposition to D.C. Circuit Stay Motions / In Support of Respondent EPA

  • Exhibits in support of Combined Intervenors' responses in opposition to stay motions filed 12/8/2015.


Intervention Motions

  • West Virginia Highlands Conservancy, et al. motion to intervene in support of EPA filed 11/24/2015.

Case Documents