ORAL ARGUMENT NOT YET SCHEDULED UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

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1 USCA Case # Document # Filed: 03/21/2013 Page 1 of 5 ORAL ARGUMENT NOT YET SCHEDULED UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT UTILITY AIR REGULATORY GROUP, et al., Petitioners, v. Docket No and consolidated cases UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents. UNOPPOSED MOTION TO RETURN CASE TO ABEYANCE STATUS Respondents United States Environmental Protection Agency and Bob Perciasepe, Acting Administrator 1/, (collectively EPA submit this unopposed motion to return this case to abeyance status and to hold the case in abeyance pending the later of the date for filing of petitions for certiorari in EME Homer City Generation, L.P. v. EPA, No (and consolidated cases, if no such petition is filed, or resolution of any such petition if one is filed. Counsel for all parties have represented that they do not oppose this motion. Petitioners National 1/ Bob Perciasepe became Acting Administrator on February 15, 2013, and is substituted for Lisa P. Jackson pursuant to FRAP 43(c. (Page 1 of Total

2 USCA Case # Document # Filed: 03/21/2013 Page 2 of 5 Parks Conservation Association and Sierra Club reserve their right to move to take the proceedings out of abeyance. The consolidated petitions in this case seek review of an EPA rule entitled Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific Best Available Retrofit Technology (BART Determinations, Limited SIP Disapprovals, and Federal Implementation Plans, 77 Fed. Reg. 33,642 (June 7, On August 30, 2012, Petitioners State of Texas, Texas Commission on Environmental Quality, and the Utility Air Regulatory Group moved to hold this case in abeyance pending resolution of any petitions for rehearing in EME Homer City Generation, L.P., No (D.C. Cir.. As explained in that motion, the validity of EPA s Cross-State Air Pollution Rule ( CSAPR, the regulation under review in EME Homer City, is highly relevant to the Court s review of the rule at issue in this case, and thus it is appropriate to hold this case in abeyance pending resolution of that case. The Court granted the motion to hold the case in abeyance by Order dated October 9, Four petitions for rehearing en banc (with one also seeking panel rehearing of the EME Homer City decision were filed on October 5, The Court denied the petitions in Orders dated January 24, 2013, and the mandate issued on February 4, Any petitions for a writ of certiorari are due April 24, By Order dated February 20, 2013, the Court returned this case to the active docket and 2 (Page 2 of Total

3 USCA Case # Document # Filed: 03/21/2013 Page 3 of 5 required the parties to file motions to govern further proceedings by March 22, For the same reasons that the Court originally held this case in abeyance pending resolution of petitions for rehearing en banc in EME Homer City, it is appropriate for the Court to return this case to abeyance pending resolution of any petitions for certiorari in that case. Final resolution of the EME Homer City case will affect the presentation of the issues in this case and may moot some or all of the issues in the case. While the Court s mandate has issued, the time for seeking a writ of certiorari from the Supreme Court has not yet passed, and thus further judicial review is possible. It is in the interest of judicial economy to wait to address the issues presented by this case until the legal status of CSAPR, upon which many of the issues in this case turn, is fully resolved. Accordingly, EPA requests that this case continue to be held in abeyance until the later of the following dates: (1 the deadline for filing any petition for writ of certiorari in the Supreme Court in EME Homer; or (2 the date of final disposition by the Supreme Court of any petition for certiorari that is filed in EME Homer. EPA further requests that the Court direct the parties to submit motions to govern further proceedings 30 days after the date described in the preceding sentence. All parties have stated that they do not oppose this motion. 3 (Page 3 of Total

4 USCA Case # Document # Filed: 03/21/2013 Page 4 of 5 Respectfully submitted, IGNACIA S. MORENO Assistant Attorney General /S/ Norman L. Rave, Jr. NORMAN L. RAVE, JR. Environmental Defense Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, D.C March 21, 2013 ( (Page 4 of Total

5 USCA Case # Document # Filed: 03/21/2013 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing document were today served, this 2st day of March, 2013, through the Court s CM/ECF system on all registered counsel. /s/ Norman L. Rave, Jr. NORMAN L. RAVE, JR. Counsel for Respondent EPA (Page 5 of Total

6 USCA Case # Document # Filed: 03/21/2013 Page 1 of 4 ORAL ARGUMENT NOT YET SCHEDULED UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT UTILITY AIR REGULATORY GROUP, et al., Petitioners, v. Docket No and consolidated cases UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents. RESPONDENTS CERTIFICATE OF COUNSEL Pursuant to Circuit Rule 27(a(4, counsel for Respondents United States Environmental Protection Agency and Bob Perciasepe, Acting Administrator 1/, (collectively EPA submit this certificate as to parties, rulings, and related cases. (A Parties and Amici (i Parties, Intervenors, and Amici Who Appeared in the District Court This case is a petition for review of agency action, not an appeal from the ruling of a district court. 1/ Bob Perciasepe became Acting Administrator on February 15, 2013, and is substituted for Lisa P. Jackson pursuant to FRAP 43(c. (Page 6 of Total

7 USCA Case # Document # Filed: 03/21/2013 Page 2 of 4 (ii Parties to These Cases 1. Petitioners: Utility Air Activities Group Sierra Club National Parks Conservation Association State of Texas Texas Commission on Environmental Quality 2. Respondents: United States Environmental Protection Agency Bob Perciasepe, Acting Administrator. 3. Intervenors: The following are Intervenors on behalf of Petitioners: American Coalition for Clean Coal Electricity Luminant Generation Company, LLC Sandow Power Company, LLC Big Brown Power Company, LLC Oak Grove Management Company, LLC Luminant Mining Company, LLC Big Brown Lignite Company, LLC Luminant Big Brown Mining Company, LLC 2 (Page 7 of Total

8 USCA Case # Document # Filed: 03/21/2013 Page 3 of 4 Luminant Holding Company Luminant Energy Company, LLC The following are Interevenors on behalf of Respondents: National Parks Conservation Association Sierra Club Union Electric Company Utility Air Regulatory Group American Coalition for Clean Coal Electricity Luminant Generation Company, LLC Sandow Power Company, LLC Big Brown Power Company, LLC Oak Grove Management Company, LLC Luminant Mining Company, LLC Big Brown Lignite Company, LLC Luminant Big Brown Mining Company, LLC Luminant Holding Company Luminant Energy Company, LLC The following have moved to intervene on behalf of Respondents: State of Indiana Indiana Energy Association 3 (Page 8 of Total

9 USCA Case # Document # Filed: 03/21/2013 Page 4 of 4 4. Amici: None (B Rulings Under Review The Agency action under review is a final rule entitled Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific Best Available Retrofit Technology (BART Determinations, Limited SIP Disapprovals, and Federal Implementation Plans, 77 Fed. Reg. 33,642 (June 7, (C Related Cases The rule under review is also the subject of the petition for review in National Parks Conservation Ass n v EPA, No (D.C. Cir.. Petitions for review of regionally applicable portions of the rule are pending in Luminant Generation Co. LLC v. EPA, No (5th Cir., and National Parks Conservation Association v. EPA, No (6th Cir.. Respectfully submitted, IGNACIA S. MORENO Assistant Attorney General /S/ Norman L. Rave, Jr. NORMAN L. RAVE, JR. Environmental Defense Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, D.C March 21, 2013 ( (Page 9 of Total