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03.28.2016

On February 9, 2016, the United States Supreme Court halted the implementation of the EPA’s Clean Power Plan (CPP) by granting a stay of the administrative rule until the legal challenges are resolved in court.  The practical effect of the stay is that the EPA cannot continue to take action to implement or enforce the CPP until the Supreme Court either rules or refuses to get involved.  The case is currently before the U.S Court of Appeals for the D.C. Circuit, and oral argument is scheduled for June 2, 2016.  Importantly, the stay means that the EPA will not be able to enforce the September 6, 2016 deadline for states to either submit their emission reduction plans or request an extension.  Even so, some states are continuing to proceed with compliance planning for the CPP.

Currently, 19 states, including Virginia, California and New York, are continuing their CPP compliance planning efforts.  In Virginia, a group of 14 electricity industry and consumer stakeholders meets on a monthly basis to prepare recommendations to Governor Terry McAuliffe regarding how the state can meet its goal of a 31.6% emissions rate reduction.  Governor Andrew Cuomo of New York and Jay Apperson, a spokesman for the Maryland Department of the Environment, have also indicated their commitment to moving forward to comply with CPP emissions reduction measures, despite the Supreme Court’s stay.

Another 20 states—many of which are currently challenging the CPP—have suspended compliance planning in light of the stay.  Those states include West Virginia, Texas, Kentucky and North Carolina, among others.  The stay has given opponents of the CPP justification for taking a “wait and see approach” to complying with the CPP.  Many of these states have indicated that they have no intention of moving forward with developing a state plan until the case is resolved.

Finally, eight states are currently assessing how to move forward with compliance planning now that the Supreme Court has stayed the CPP.  While the stay does enable states to avoid spending time, money and effort developing a state compliance plan now, some argue that states putting CPP planning on hold may be losing out on economic and business opportunities available in the clean energy sector.

For more information on this development, please contact Webb Moore or Jaime Wisegarver.

Media Contact

Kristen M. Chatterton
804.771.5637
kchatterton@hirschlerlaw.com

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