USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 1 of 29 ORAL ARGUMENT NOT YET SCHEDULED IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ) STATE OF WISCONSIN, et al., ) ) Petitioners, ) ) v. ) No. 16-1406 and ) consolidated cases UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY and E. SCOTT PRUITT, Administrator, United States Environmental Protection Agency, ) ) ) ) Respondents. ) ) JOINT REPLY IN SUPPORT OF MOTION FOR MODIFICATION OF BRIEFING SCHEDULE TO EXTEND BRIEFING DEADLINES BY 120 DAYS In support of the Joint Motion to modify the briefing schedule (ECF No. 1687655), Movants reply to the Environmental Protection Agency s ( EPA ) response (ECF No. 1688478) and the responses in opposition by Sierra Club, et al. ( Sierra Club )(ECF No. 1688918), and intervenor-respondents New York, et al. ( State Intervenor-Respondents )(ECF No. 1689252). 1. EPA does not oppose the briefing-schedule extension provided the schedule is adjusted by three weeks to provide additional time for preparation of EPA s response brief over the December holidays. EPA Response 1-2; id. 10. Movants do not oppose EPA s requested adjustment.
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 2 of 29 2. EPA s objections are limited to Movants secondary request for a status report. 1 EPA s objections on this point appear to arise from a misconception that Movants would have this Court assume jurisdiction to oversee the administrative reconsideration process. Id. 6. EPA suggests Movants status-report request is an attempt to control the timing of EPA s administrative consideration of the reconsideration petitions, id. 8, and a back-door means of coercing agency action, id. 9. But Movants only made the point that deferring briefing for the limited period requested will provide a reasonable opportunity for EPA determinations regarding the pending petitions for reconsideration in advance of the deadline for filing opening briefs. Joint Motion 7 (emphases added). Movants do not ask the Court to exercise control over EPA s reconsideration process. To the contrary, Movants requested a status report merely as a matter of course. Should the Court find no need for a status-report requirement, Movants certainly have no objection to dispensing with any such requirement. 3. EPA observes that it is not unusual for rulemakings to be subject to judicial review while petitions for administrative reconsideration are still pending. EPA Response 7. The motion, however, does not seek an indefinite, or even an especially extended, suspension but instead makes a request for a time-limited 1 Movants request for a briefing-schedule modification is not contingent on issuance of an order requiring a status report. In the absence of a status report, Movants anticipate that they would attempt to obtain from EPA at the appropriate time any information that may be available on the status of its review of the reconsideration petitions. 2
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 3 of 29 modification of briefing dates a commonplace request. 2 Moreover, while Movants appreciate that EPA is unable at this time to say whether it will or will not grant the reconsideration petitions, the fact is that EPA is among several agencies that currently are reviewing their existing regulations that may potentially burden the development or use of domestically produced energy resources. Executive Order No. 13,783, Promoting Energy Independence and Economic Growth, 1(c), 82 Fed. Reg. 16,093 (Mar. 31, 2017); see also Executive Order 13,777, Enforcing the Regulatory Reform Agenda, 3, 82 Fed. Reg. 12,285, 12,285-86 (Mar. 1, 2017)(requiring agencies to, inter alia, identify for possible modification existing regulations that eliminate jobs, or inhibit job creation, are unnecessary, or impose costs that exceed benefits ); EPA, Evaluation of Existing Regulations, 82 Fed. Reg. 17,793 (Apr. 13, 2017)(soliciting public input on [existing EPA] regulations that may be 2 See, e.g., Attachment A hereto ( Unopposed Joint Motion of Petitioners and Respondent EPA To Hold Briefing Schedule in Abeyance or, in the Alternative, To Extend Briefing Deadlines, Natural Resources Defense Council and Sierra Club v. EPA, No. 08-1250 (D.C. Cir., Dec. 1, 2008)(ECF No. 1152100), at 1 ( jointly mov[ing] for entry of an order withdrawing the currently-ordered briefing schedule and holding further proceedings in this case in abeyance for no longer than six months, pending EPA s evaluation of [Sierra Club s] administrative petition for reconsideration of the rule that is challenged [by Sierra Club] in this case ); see id. 5 (arguing it would be most practical at this time to hold further proceedings in abeyance pending action by EPA on [Sierra Club s] petition for reconsideration of the rule under review; and reporting that EPA continues to evaluate th[at] petition and that, although EPA may be ready to take action on the petition within the next two months[,] [i]t is also possible that [EPA s] evaluation [of the petition] may continue for a longer period. )); Attachment B hereto (December 3, 2008 Order (ECF No. 1152283) in No. 08-1250, granting Sierra Club and EPA s request for a six-month abeyance of judicial proceedings pending [EPA s] consideration of Sierra Club s reconsideration petition). 3
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 4 of 29 appropriate for modification, pursuant to Executive Order 13,777); https://www.epa.gov/laws-regulations/regulatory-reform (visited Aug. 18, 2017). Thus, it is not mere speculation that action relevant to this litigation may be forthcoming on one or more of the reconsideration petitions. 4. Sierra Club contends that the motion seeks to stay this litigation and suggests that granting it would lead to further extension requests by Movants when the extension expires. 3 Sierra Club Response 1.b. But the motion is clear that it requests only extension of briefing dates, and only for a limited period of 120 days. Joint Motion 7 (emphasis added); id. 9 (requesting limited modification of the briefing schedule )(emphasis added). Movants request is far from open-ended; they do not seek indefinite suspension. Sierra Club s speculation about the possibility of future briefing-deadline extensions provides no basis for denying the motion that is before the Court. 4 3 Sierra Club does not oppose extending by three weeks the briefing deadlines in the Court s May 15, 2017 Order. Sierra Club Response 7-8. 4 Any possible future motions if any should be filed at all would be judged on their own merits and under the circumstances at that future time. In any event, because Movants include petitioners that own facilities subject to the requirements of the EPA rule under review, and because that rule s emission-reduction requirements apply to those facilities now, see Joint Motion 4 n.2; id. at 7 n.4 (noting that [t]he Rule and its emission-reduction requirements have not been stayed and are in effect and remain in effect for the current ozone season and ozone seasons in future years ), Movants have distinct interests in avoiding open-ended abatement of these cases. 4
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 5 of 29 5. In another exercise in conjecture, Sierra Club describes a putative position by Movants that the challenges to the original rule and EPA s reconsideration decision should be heard together. Sierra Club Response 1.b. Nothing in the motion presents such a position (which in any event would be premature) or attempts to forecast how any potential future challenges to EPA s reconsideration decision should be addressed. Id. Rather, the motion makes the common-sense point that [c]onsideration and resolution of petitions for reconsideration may well narrow, and in some respects may moot, issues to be briefed in these cases, Joint Motion 6 (emphasis added) a point Sierra Club does not contest and, indeed, appears to acknowledge, see Sierra Club Response 3.b. (noting the potential for future changes in the scope of briefing in these cases). 6. Sierra Club erroneously claims the Joint Motion is an untimely motion for a stay that had to be filed within 30 days after docketing of the cases. 5 Id. 1.c.; see id. 1.d., page 7. First, as noted above, the motion seeks neither an unlimited stay 6 5 Although the Joint Motion does not request a stay, Sierra Club suggests (at 1.a) that Movants quotation of Landis v. N. Am. Co., 299 U.S. 248, 254 (1936), describing courts power to stay proceedings the only place the word stay appears in the motion renders the Joint Motion a motion for a stay. That is a misreading. Movants point is simply that the existence of courts broad power to stay cases to promote judicial economy logically supports the unremarkable proposition that courts likewise have the narrower power to extend specific brief-filing deadlines for limited and defined periods in order to further the same objective. 6 Sierra Club appears to suggest the motions for stay to which page 28 of the Circuit Handbook refers are motions to stay judicial proceedings rather than motions to stay the effectiveness of judgments or agency orders. See Sierra Club Response 1.c. That 5
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 6 of 29 nor indefinite abeyance. Rather, the motion is entitled, Joint Motion for Modification of Briefing Schedule (emphasis added), and, as the motion notes, it is submitted [p]ursuant to Rule 26(b) of the Federal Rules of Appellate Procedure which authorizes the Court to extend the time prescribed by these rules or by its order and Circuit Rule 28(e) which authorizes motions to extend the time for filing briefs. Joint Motion 1. Sierra Club s claim contradicts Circuit Rule 28(e)(2), which provides that [a] motion to extend the filing time for a brief must be filed at least 7 days before the brief is due. The Joint Motion was filed well in advance of Circuit Rule 28(e)(2) s deadline. 7. Even if the Joint Motion were properly characterized as a stay or abeyance motion, it would not be untimely. Sierra Club itself (jointly with EPA) has experience filing such a motion in this Court, well after the 30-days-after-docketing deadline that it here asserts is binding. Compare Attachment A (joint EPA-Sierra Club motion filed on December 1, 2008, in Case No. 08-1250, presenting a request to stay proceedings by holding further proceedings in this case in abeyance in Sierra Club s judicial challenge to an EPA Clean Air Act rule published May 16, 2008, Attachment A at 1, 1) with Order at 1-2, Natural Resources Defense Council and Sierra suggestion is at odds with the fact that, as Sierra Club recognizes, the same sentence in the Handbook also refers to motions to hold the case in abeyance which would seem to be, for all practical purposes, the same as motions to stay judicial proceedings, meaning that that reference would, under Sierra Club s interpretation, be redundant. Moreover, the Handbook elsewhere indicates the procedural motions category is meant to include motions to stay judgments and agency orders. See Circuit Handbook 32-33. In any event, as this reply explains, the Joint Motion is not untimely. 6
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 7 of 29 Club v. EPA, No. 08-1250 (D.C. Cir., July 17, 2008)(ECF No. 1128124)(ordering Sierra Club and EPA to file any [p]rocedural motions in that case by August 18, 2008)(Attachment C hereto). 7 Such motions practice is common and not prohibited. The Joint Motion in the present cases is as timely as Sierra Club s motion was in No. 08-1250. 8. Sierra Club opposes the requested extension on the grounds that key circumstances remain now what they were months ago and that it is unknown when EPA will rule on the reconsideration petitions. Sierra Club Response 2.a. But such uncertainty is not materially different from the circumstances that led Sierra Club to seek abeyance in No. 08-1250, in which it argued it would be most practical at this time to hold further proceedings in abeyance pending action on [Sierra Club s] petition for reconsideration notwithstanding that it remained uncertain how long EPA s evaluation of that petition may continue. Attachment A at 5. Despite that continuing uncertainty regarding the timing of and prospects for an EPA decision on its reconsideration petition, Sierra Club reasonably argued that it would be preferable to hold further judicial proceedings in abeyance for a limited time so that, ideally, the administrative reconsideration process could be resolved prior to merits briefing. Id. (emphasis added). Movants seek no more than that here. 7 The on-line docket in No. 08-1250 does not list any order extending that August 18, 2008 deadline. 7
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 8 of 29 9. Sierra Club does not show that any substantial harm to its interests would result from the modest, time-limited extension that Movants request. According to Sierra Club, Public Health Petitioners and the State of Delaware seek to reduce air pollution that threatens harm to the health of their members and residents. Sierra Club Response 3.a. But Sierra Club fails to explain how a limited, 120-day extension of briefing deadlines would defeat that objective. Indeed, as noted above and in the Joint Motion, the challenged EPA rule s emission-reduction requirements are fully in effect now and have not been stayed (and, of course, the Joint Motion seeks no stay of the rule). The absence of any demonstration that a 120- day extension of briefing dates would harm Sierra Club s asserted interests is highlighted by the nature of the only documents it cites to support this argument declarations submitted to support Sierra Club s motion to intervene in these cases in support of EPA s rule. See id. (citing Declarations to Motion to Intervene, Doc. No. 1652870, Exhibits A, B, C, D, J (Dec. 23, 2016) ); see also ECF Doc. No. 1652870, Exhibit B (Blake Declaration) 8 ( I support the Rule. ); id., Exhibit C (Bryant Declaration) 8 (same); id., Exhibit D (Charest Declaration) 7 (same); id., Exhibit J (Kleissler Declaration) 9 (same). Sierra Club does not show how statements supporting the rule provide a basis for rejecting a limited extension of dates for briefs challenging that rule. 10. Sierra Club also asserts injury due to the time spent on brief preparation and the possibility that redrafting might be necessary due to potential changes in the 8
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 9 of 29 scope of briefing. Sierra Club Response 3.b. But it is hardly apparent, and Sierra Club fails to explain, why its brief would require significant rewriting in the event of any change in the scope of issues that other petitioners unaligned with Sierra Club may brief due to potential EPA determinations regarding those other petitioners reconsideration requests, especially since Sierra Club and its co-petitioners have no reconsideration petitions pending. 11. State Intervenor-Respondents object that EPA itself has not requested an extension of briefing dates and that adjudication of challenges to EPA s rule at the earliest reasonable time is in their interest because they rely on the rule s emission reductions to protect the health and welfare of their residents. State Intervenor- Respondents Response 2. But, as they acknowledge, EPA does not oppose Movants requested extension, id. at 3, and the limited extension Movants request is reasonable in order to allow for potential administrative actions regarding reconsideration petitions that may narrow or otherwise affect the scope (Sierra Club Response 3.b.) of issues that may need to be briefed to this Court. Further, State Intervenor-Respondents do not explain how the requested modest extension of briefing dates would unduly or unreasonably delay adjudication of these cases. Moreover, given that EPA s rule is not stayed and remains fully in effect, and given these states view that [e]very day that the Rule remains in place provides reductions in health and environmental problems within the[ir] borders, State Intervenor- Respondents Response 6 (emphasis added), it is unclear how adjudication at an earlier 9
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 10 of 29 date which necessarily entails the prospect of remand or even vacatur of the rule occurring at an earlier date would further the interests they assert. To the extent these parties which, as intervenor-respondents here, cannot challenge the rule before the Court may prefer yet more stringent EPA regulation, see id., they may petition EPA for further rulemaking or may advance their views in any EPA proceedings undertaken in response to the district court order they cite, see id., the schedule for which would not depend on the filing deadlines in the present cases. For the foregoing reasons and those presented in the Joint Motion, Movants request for a limited, 120-day extension of briefing dates should be granted. 8 Dated: August 18, 2017 Respectfully submitted, /s/ Norman W. Fichthorn Norman W. Fichthorn E. Carter Chandler Clements HUNTON & WILLIAMS LLP 2200 Pennsylvania Ave., N.W. Washington, D.C. 20037 (202) 955-1500 nfichthorn@hunton.com eclements@hunton.com Counsel for the Utility Air Regulatory Group 8 Sierra Club s alternative cross-motion, Sierra Club Response 1, 7, asks that an order granting the Joint Motion be accompanied by severance of Nos. 16-1443 and 16-1448 from the other cases. Movants do not at this time take a position on that cross-motion but reserve the right to file a response to it. Movants note, however, that in any event such a severance would not preclude scheduling Nos. 16-1443 and 16-1448 for oral argument on the same day, and before the same panel, as the other cases, should the Court deem that appropriate. 10
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 11 of 29 /s/ Peter S. Glaser Peter S. Glaser Troutman Sanders LLP 401 Ninth Street, NW Suite 1000 Washington, D.C. 20004 202-274-2998 peter.glaser@troutmansanders.com Margaret Claiborne Campbell M. Buck Dixon Troutman Sanders LLP 600 Peachtree Street, NE Suite 5200 Atlanta, GA 30308-2216 Scott C. Oostdyk E. Duncan Getchell, Jr. Michael H. Brady McGuireWoods LLP Gateway Plaza 800 East Canal Street Richmond, Virginia 23219-3916 804-775-4743 soostdyk@mcguirewoods.com Counsel for Murray Energy Corporation /s/ David M. Flannery David M. Flannery Kathy G. Beckett Steptoe & Johnson PLLC P.O. Box 1588, Charleston, WV 25326-1588 Chase Tower, 8th Floor 707 Virginia Street, East Charleston, WV 25301 (304) 353-8000 Dave.flannery@steptoe-johnson.com Kathy.beckett@steptoe-johnson.com 11
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 12 of 29 Edward L. Kropp Steptoe & Johnson PLLC PO Box 36425 Indianapolis, Indiana 46236 317-946-9882 Skipp.kropp@steptoe-johnson.com Counsel for the Indiana Energy Association, the Indiana Utility Group, and the Midwest Ozone Group /s/ P. Stephen Gidiere III P. Stephen Gidiere III Julia B. Barber Balch & Bingham LLP 1901 6th Ave. N., Ste. 1500 Birmingham, Alabama 35203 205-251-8100 sgidiere@balch.com David W. Mitchell Balch & Bingham LLP 601 Pennsylvania Avenue, N.W. Suite 825 South Washington, D.C. 20004 Stephanie Z. Moore Executive Vice President & General Counsel Vistra Energy Corp. 6555 Sierra Drive Irving, Texas 75039 Daniel J. Kelly Vice President & Associate General Counsel Vistra Energy Corp. 6555 Sierra Drive Irving, Texas 75039 Counsel for Luminant Generation Company LLC, Big Brown Power Company LLC, Luminant Mining Company LLC, La Frontera Holdings, LLC, Oak Grove Management Company LLC, and Sandow Power Company LLC 12
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 13 of 29 /s/ C. Grady Moore III Ben H. Stone Terese T. Wyly M. Brant Pettis Balch & Bingham LLP 1310 Twenty Fifth Avenue Gulfport, MS 39501 Tel: (228) 864-9900 Fax: (228) 864-8221 bpettis@balch.com C. Grady Moore III Balch & Bingham LLP 1901 Sixth Avenue North, Suite 1500 Birmingham, AL 35303-4642 Tel: (205) 251-8100 Fax: (205) 488-5704 gmoore@balch.com Counsel for Mississippi Power Company /s/ Louis E. Tosi Louis E. Tosi Cheri A. Budzynski Shumaker, Loop & Kendrick, LLP 1000 Jackson Street Toledo, Ohio 43604 419.241.9000 ltosi@slk-law.com cbudzynski@slk-law.com 13
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 14 of 29 Michael A. Born Shumaker, Loop & Kendrick, LLP 41 South High Street, Suite 2400 Columbus, Ohio 43215 614.463.9441 mborn@slk-law.com Counsel for the Ohio Utility Group and Its Member Companies (AEP Generation Resources Inc., Buckeye Power, Inc., The Dayton Power and Light Company, Duke Energy Ohio, Dynegy Commercial Asset Management, LLC, First Energy Solutions, and Ohio Valley Electric Corporation) /s/ John A. Sheehan Todd E. Palmer John A. Sheehan Valerie L. Green Michael, Best & Friedrich LLP 601 Pennsylvania Ave. NW, Suite 700 Washington, DC 20004-2601 (202) 844-3808 (telephone) (202) 347-1819 (facsimile) tepalmer@michaelbest.com jasheehan@michaelbest.com vlgreen@michaelbest.com Attorneys for Wisconsin Paper Council, Wisconsin Manufacturers and Commerce, Wisconsin Industrial Energy Group, and Wisconsin Cast Metals Association 14
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 15 of 29 CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing reply complies with Fed. R. App. P. 27(d)(1)(E) and 32(a)(5) and (6) because it has been prepared in 14-point proportionally-spaced Garamond typeface. Pursuant to Fed. R. App. P. 32(f) and (g), I further certify that the foregoing reply complies with the type-volume limitation of Fed. R. App. P. 27(d)(2)(C) because it contains 2,597 words, excluding exempted parts, according to the count of Microsoft Word 2010. Dated: August 18, 2017 /s/ Norman W. Fichthorn Norman W. Fichthorn CERTIFICATE OF SERVICE I hereby certify that on this 18 th day of August 2017, I caused the foregoing reply to be served electronically on all registered counsel through the Court s CM/ECF system. /s/ Norman W. Fichthorn Norman W. Fichthorn
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 16 of 29 ATTACHMENT A
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 17 of 29 EXPEDITED CONSIDERATION REOUESTED ORA ARGUMNT NOT YET SCHEDULED UNTED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMIA CIRCUIT NATUR RESOURCES DEFENSE ) COUNCIL and SIERR CLUB, ) v. Petitioners, ) ) ) ) Docket No. 08-1250 UNITED STATES ENVIRONMNTAL ) PROTECTION AGENCY, ) Respondent. ) UNOPPOSED JOINT MOTION OF PETITIONERS AND RESPONDENT EP A TO HOLD BRIEFING SCHEDULE IN ABEYANCE OR, IN THE ALTERNATIVE. TO EXTEND BRIEFING DEADLINES Petitioners Natural Resources Defense Council and Sierra Club in the above-captioned petitions ("Petitioners") and Respondent United States Environmental Protection Agency ("EP A" or "the Agency") hereby jointly move for entry of an order withdrawing the currently-ordered briefing schedule and holding further proceedings in this case in abeyance for no longer than six months, pending EP A's evaluation of an administrative petition for reconsideration of the ) rule that is challenged in this case. If the Court decides not to enter a stay,
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 18 of 29 Petitioners and EP A alternatively move for an order extending the deadlines for briefing in the manner described in Paragraph 12 below. In addition, Petitioners seek expedited consideration of this motion for the reasons stated in Paragraph 15 below. Counsel for each of the Intervenor-Respondents in this case have confirmed that their clients take no position on the movants' primary "request for relief (i. e., to withdraw the current briefing schedule and hold further proceedings in abeyance), and do not oppose the alternative request for an extension of the briefing schedule. In addition, neither EPA nor any of the Intervenor-Respondents opposes Petitioners' request for expedited consideration of this motion. Petitioners and. EP A state the following in support of this motion: i. BACKGROUND 1. Petitioners in this case challenge an EP A final rule promulgated pursuant to the Clean Air Act, which is entitled "Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM 2.5)," 73 Fed. Reg. 28,321 (May 16, 2008) (the "Final Rule"). The Final Rule implements the New Source Review program for the 1997 national ambient air quality standard ("NAAQS") for PM 2.5. -2-
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 19 of 29 2. Petitioners also submitted to EPA, on July 15,2008, an administrative petition for reconsideration of the Final Rule. A copy of that petition is attched to this motion as Exhibit A. The petition seeks reconsideration of several different Final Rule provisions or determinations EP A made during the rulemaking, on both procedural and substantive grounds. See generally Ex. A. 3. Three parties have intervened in this case as Respondents: the National Environmental Development Association's Clean Air Project, the Utility Air Regulatory Group, and the Fine Particulate Litigation Group (collectively, "Intervenor-Respondents"). See Order of Nov. 12, 2008 (granting leave to intervene ). 4. On November 12,2008, the Court issued an order that, among other things, denied Petitioner's motion for a stay of the Final Rule pending judicial review. Rather than require the parties to propose a schedule for merits briefing, the Court then set a schedule sua sponte, under which Petitioners are to file their joint opening brief by December 19, 2008; Respondent EP A's brief is due 40 days thereafter, by January 28, 2009; Intervenor-Respondents' joint brief is due on February 11,2009; and Petitioners' joint reply is due on February 25, 2009. -3-
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 20 of 29 II. THE COURT SHOULD ENTER A STAY OF PROCEEDINGS PENDING EP A'S ACTION ON THE PETITION FOR ADMINISTRATIVE RECONSIDERATION. 5. Petitioners and EP A respectively submit that rather than proceed immediately with merits briefing, it would be most practical at this time to hold further proceedings in abeyance pending action by EP A on Petitioners' petition for reconsideration. EP A continues to evaluate the petition, and may be ready to take action on the petition within the next two months. It is also possible that the Agency's evaluation may continue for a longer period. In either scenario, Petitioners and EP A agree that it would be preferable to hold further judicial proceedings in abeyance for a limited time so that, ideally, the administrative reconsideration process could be resolved prior to merits briefing and any new challenges to the Agency's action on reconsideration could be timely consolidated with this case. 6. In order to limit the amount of delay before commencing merits briefing, Petitioners and EP A propose that the Court: ( a) require the parties to file a motion or motions to govern future proceedings no later than six months following an order granting this motion; and (b) permit any party to file such a motion at an earlier date if such party no longer supports continuing the stay of proceedings. -4-
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 21 of 29 7. Intervenor-Respondents have confirmed through counsel that they take no position on the movants' request to withdraw the currently-ordered. briefing schedule and enter the stay of proceedings described herein. 8. Accordingly, Petitioners and EP A respectfully request that the Court issue an order: (a) withdrawing the currently-ordered briefing schedule; (b) holding further proceedings in abeyance; and (c) requiring the parties to file a motion or motions to govern further proceedings no later than six months following entry of the Court's order, or at an earlier date if appropriate. III. ALTERNATIVELY, THE COURT SHOULD EXTEND THE CURRNT BRIFING DEADLINES TO ALLOW THE PARTIES ADEQUATE TIME TO BRIEF COMPLEX ISSUES. 9. In the event the Court does not grant the,above-stated request for a stay of proceedings, Petitioners and EP A agree that additional time is necessary to adequately brief the merits of the case. Petitioners' brief is expected to present challenges to at least five distinct provisions of the Final Rule, which wil require consideration of a number of complex legal and record issues. See Nonbinding Statement of Issues for Natural Resources Defense Council, and Sierra Club (Ex. B to this motion). Petitioners respectfully submit that an additional 45 days is warranted in order to adequately brief these issues. -5-
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 22 of 29 10. In addition, the current schedule gives EP A only 40 days to file its Respondent's brief after receiving Petitioners' opening brief. EP A anticipates that it wil require at least 75 days after the opening brief is filed to adequately prepare its responsive brief and obtain management-level review of the draft at EP A and the Department of Justice before the brief is filed. 11. EP A also is concerned that under the current schedule, it must file its brief just eight days after the Presidential inauguration on January 20,2009. EPA expects that it would need additional time to ensure adequate review by decisionmaking officials in the new administration before filing the brief. 12. Therefore, in the event the Court does not enter a stay of proceedings as requested above, Petitioners and EP A respectfully request that the Court amend its scheduling order to provide as follows: Joint Brief of Petitioners (not to exceed 14,000 words) February 2, 2009 Brief of Respondent (not to exceed 14,000 words) Joint Brief of Intervenors (not to exceed 8,750 words) April 20, 2009 May 20, 2009 Joint Reply Brief of Petitioners (not to exceed 7,000 words) June 3, 2009 Joint Appendix June 10, 2009-6-
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 23 of 29 Final Briefs June 17,2009 13. Intervenor-Respondents have confirmed through counsel that they do not oppose the extended briefing schedule requested above. iv. CONCLUSION 14. For the foregoing reasons, Petitioners and EPA respectfully request that the Court issue an order staying further proceedings in this case in the manner described in Paragraph 8 above, or alternatively extending the briefing schedule in the manner described in Paragraph 12 above. 15. Because Petitioners' brief currently is due in 18 days (i. e., on December 19, 2008), Petitioners respectfully request expedited consideration of this motion so that they may be advised regarding the Court's decision prior to the current filing date and thus can act consistently with that decision. 16. Petitioners have authorized counsel for EPA to file this Joint Motion on Petitioners' behalf. Respectfully submitted, Dated: December 1, 2008 By: RONALDJ.. TENPAS Assistant r- Attorney General d. ii,.-. L Environment and atural Resources Div. ". /.',/tl._0'- BRIAN H. L, D.C. Bar No. 459525 U.S. Department of Justice -7-
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 24 of 29 OF COUNSEL: BRIAN DOSTER Office of General Counsel (2344A) U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW Washington, D.C. 20460 Environmental Defense Section P.O. Box 23986 Washington, D.C. 20026-3986 (202) 514-6187 (tel.) Attorney for Respondents -8-
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 25 of 29 ATTACHMENT B
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 26 of 29 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 08-1250 September Term 2008 Natural Resources Defense Council and Sierra Club, Petitioners v. Environmental Protection Agency, Respondent ------------------------------ Fine Particulate Litigation Group, et al., Intervenors O R D E R EPA-73FR28321 Filed On: December 3, 2008 [1152283] Upon consideration of petitioners and respondent s motion to hold case in abeyance or to extend briefing deadlines, it is ORDERED that the motion to hold in abeyance be granted, and this case is hereby held in abeyance pending respondent s consideration of petitioners request for agency reconsideration. The parties are directed to file motions to govern future proceedings in this case no later than June 1, 2009. FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Mark A. Butler Deputy Clerk
USCA Case #16-1428 Document #1689467 Filed: 08/18/2017 Page 27 of 29 ATTACHMENT C
USCA Case #16-1428 #08-1250 Document #1689467 #1128124 Filed: 08/18/2017 07/17/2008 Page 28 1 of 29 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 08-1250 September Term 2007 Natural Resources Defense Council and Sierra Club, Petitioners v. Environmental Protection Agency, Respondent O R D E R EPA-73FR28321 Filed On: July 17, 2008 [1128124] The petition for review in this case was filed and docketed on July 15, 2008, and assigned the above number. It is, on the court s own motion, ORDERED that petitioners submit the following document(s) by the date(s) indicated: Certificate as to Parties, Rulings, and Related Cases August 18, 2008 Docketing Statement Form August 18, 2008 Procedural motions that may affect case calendaring, if any Statement of Intent to Utilize Deferred Joint Appendix August 18, 2008 August 18, 2008 Statement of Issues to be Raised August 18, 2008 Underlying Decision from Which Appeal or Petition Arises August 18, 2008 Dispositive Motions, if any September 2, 2008
USCA Case #16-1428 #08-1250 Document #1689467 #1128124 Filed: 08/18/2017 07/17/2008 Page 29 2 of 29 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 08-1250 September Term 2007 It is FURTHER ORDERED that respondent submit the following document(s) by the date(s) indicated: Entry of Appearance Form August 18, 2008 Procedural motions that may affect case calendaring, if any August 18, 2008 Certified Index to the Record September 2, 2008 Dispositive Motions, if any September 2, 2008 It is FURTHER ORDERED that briefing in this case be deferred pending further order of the court. The Clerk is directed to transmit to respondent a certified copy of this order and a copy of the petition for review. FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Laura M. Chipley Deputy Clerk The following forms and notices are available on the Court s website at http://www.cadc.uscourts.gov/internet/home.nsf/content/forms+in+orders Agency Docketing Statement Form Entry of Appearance Form Request to Enter Appellate Mediation Program Notice Concerning Expedition of Appeals and Petitions for Review Stipulation to be Placed in Stand-By Pool of Cases Page 2