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

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

Tab Group

Petition Stage

Petitions for review dismissed as moot

September 17, 2019

The D.C. Circuit dismissed the petitions for review of the EPA’s 2015 Clean Power Plan as moot in light of the EPA’s 2019 Affordable Clean Energy Rule, which rescinds the 2015 Clean Power Plan. The U.S. Chamber and other petitioners asked for the D.C. Circuit to dismiss the petitions as moot in light of the Affordable Clean Energy rule, which took effect on September 6, 2019. The U.S. Chamber is also an intervenor in support of the EPA’s Affordable Clean Energy Rule in separate litigation.

U.S. Chamber and coalition of petitioners file reply in support of motion to dismiss litigation against Clean Power Plan as moot in light of EPA’s final rescission of the Clean Power Plan

August 1, 2019

Click here to view the reply brief. The petitioners previously moved to dismiss the pending litigation as moot, as new litigation against the Trump administration’s rule rescinding and replacing the Clean Power Plan is now getting under way. The Clean Power Plan has been enjoined since February of 2016, after the U.S. Chamber and others successfully obtained a stay from the U.S. Supreme Court.

Clean Power Plan petitioners move to dismiss their challenges to Clean Power Plan as moot

July 15, 2019

The Clean Power Plan petitioners, including the U.S. Chamber, jointly moved to dismiss their challenges to Clean Power Plan as moot. The D.C. Circuit has held the cases challenging the plan in abeyance since April of 2017, pending the Trump Administration’s then announced efforts to repeal and replace the plan. On July 8, 2019, the administration published the final version of a rule that completely rescinds the Clean Power Plan and separately replaces it with new guidelines for emissions standards for existing coal-fired power plants. If granted, the motion would terminate the Clean Power Plan litigation as moot. Litigation over the Trump administration’s replacement rule (known as the Affordable Clean Energy Plan) would move forward separately.

En banc D.C. Circuit holds Clean Power Plan case in abeyance for an additional 60 days

August 8, 2017

Click here to view the order.

Supreme Court grants stay

February 9, 2016

Although the D.C. Circuit denied the stay motion, the U.S. Supreme Court subsequently granted a stay of the rule. 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.

Procedural History

10/23/2015: U.S. Chamber files lawsuit challenging Clean Power Plan

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 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

Joint State and Non-State Petitioners' oral argument format proposal filed 4/28/2016.

Petitioner and Petitioner-Intervernor Reply Briefs

Joint State and Non-State Petitioners' reply brief on core legal issues filed 4/15/2016.

Joint State and Non-State Petitioners' reply brief on record-based legal issues filed 4/15/2016.

Petitioner-Intervenors' reply brief filed 4/15/2016.

Amicus Briefs in Support of Respondents

Adobe, Inc., Mars, Incorporated, Ikea North America Services LLC, and Blue Cross and Blue Shield of Massachusetts, Inc. amicus curiae brief in support of respondents filed 4/1/2016.

Amazon.com, Inc., Apple Inc., Google Inc., and Microsoft Corporation amicus curiae brief in support of respondents filed 4/1/2016.

Catholic Climate Covenant, with 40 nonprofit universities and religious corporations, amicus curiae brief in support of respondents filed 4/1/2016.

Citizens Utility Board, Consumers Union, and Public Citizen, Inc. amicus curiae brief in support of respondents filed 4/1/2016.

20 climate scientists amicus curiae brief in support of respondents filed 4/1/2016.

Dominion Resources, Inc. amicus curiae brief in support of respondents filed 4/1/2016.

5 electric grid experts amicus curiae brief in support of respondents filed 4/1/2016.

Former EPA administrators William Ruckelshaus and William Reilly amicus curiae brief in support of respondents filed 3/31/2016.

16 former state environmental and energy officials’ amicus curiae brief in support of respondents filed 4/1/2016.

Institute for Policy Integrity at New York University School of Law amicus curiae brief in support of respondents filed 4/1/2016.

Leon G. Billings and Thomas C. Jorling, principal drafters of the 1970 Clean Air Act amendments, amicus curiae brief in support of respondents filed 4/1/2016.

Madeleine Albright, Leon Panetta, and William Burns, former officials of U.S. Departments of State and Defense, amicus curiae brief in support of respondents filed 4/1/2016.

8 medical associations and medical colleges’ amicus curiae brief in support of respondents filed 4/1/2016.

Members of Congress amicus curiae brief in support of respondents filed 3/31/2016, signed by 36 U.S. senators, 158 representatives, and 15 former senators and representatives.

Service Employees International Union amicus curiae brief in support of respondents filed 4/1/2016.

Sustainable Business Organizations amicus curiae brief in support of respondents filed 4/1/2016.

National League of Cities, U.S. Conference of Mayors, and 54 cities, counties, and mayors’ amicus curiae brief in support of respondents filed 4/1/2016.

Union of Concerned Scientists amicus curiae brief in support of respondents filed 4/1/2016.

Respondent and Respondent-Intervenors Briefs

Respondent EPA's initial brief on the merits filed 3/28/2016.

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

34 Senators and 171 Representatives' amicus curiae brief in support of petitioners filed 2/23/2016.

166 State and Local Business Associations amicus curiae brief in support of petitioners filed 2/23/2016.

State of Nevada and Consumers' Research amicus curiae brief in support of petitioners filed 2/23/2016.

Landmark Legal Foundation amicus curiae brief in support of petitioners filed 2/23/2016.

Loggers Association of Northern California, Pacific Legal Foundation, Texas Public Policy Council, et al. amicus curiae brief in support of petitioners filed 2/23/2016.

60Plus Association, Hispanic Leadership Fund, National Black Chamber, et al. amicus curiae brief in support of petitioners filed 2/23/2016.

Former State Public Utility Commissioners amicus curiae brief in support of petitioners filed 2/23/2016.

Pedernales Electric Cooperative Inc. amicus curiae brief in support of petitioners filed 2/23/2016.

Southeastern Legal Foundation amicus curiae brief in support of petitioners filed 2/23/2016.

Municipal Electric Authority of Georgia amicus curiae brief in support of petitioners filed 2/23/2016.

Joseph S. Daleo, et al. amicus curiae brief in support of petitioners filed 2/23/2016.

Petitioners and Petitioner-Intervenor's Opening Briefs

Joint State and Non-State Petitioners' opening merits brief on core legal issues filed 2/19/2016. Select excerpts from the brief are available here.

Joint State and Non-State Petitioners' opening merits brief on record-based issues filed 2/19/2016.

EELI's proposed additional petitioner opening brief filed 2/19/2016.

Intervenors' opening merits brief in support of petitioners filed 2/23/2016.

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

Joint State and Non-State Petitioners' proposed briefing schedule filed 1/27/2016

EPA's proposed briefing schedule filed 1/27/2016.

U.S. Chamber, et al. docketing statement, disclosure statement, and statement of issues filed 12/18/2015.

EPA response and Respondent-Intervenors' response in opposition to Petitioners' proposed briefing schedule filed 12/18/2015.

State and Industry Petitioners' joint motion for proposed briefing format and expedited briefing schedule filed 12/8/2015.

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

Stay motion denied and expedition granted by D.C. Circuit on 1/21/2016.

Stay motion briefing schedule issued by D.C. Circuit on 10/29/2015.

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