IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
STATE OF ARKANSAS,
Petitioner,
Case No. 16-4270 (and
consolidated cases)
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, et al.,
Respondents.
UNOPPOSED MOTION FOR A 90-DAY ABEYANCE OF PROCEEDINGS
TO ALLOW PARTIES TO EXPLORE SETTLEMENT POSSIBILITIES
Respondents Environmental Protection Agency and Administrator Scott
Pruitt1 (collectively, EPA) respectfully requests that the Court hold these
consolidated cases in abeyance and stay all proceedings, including all briefing and
filing deadlines, for a period of 90 days in order to allow the parties time to
determine whether there is enough common ground to seek settlement on some or
all of the issues in these cases.
In these consolidated cases, Petitioners seek review of an EPA final action
published in the Federal Register at 81 Fed. Reg. 66,332 (Sept. 27, 2016) and
entitled “Promulgation of Air Quality Implementation Plans; State of Arkansas;
Regional Haze and Interstate Visibility Transport State Implementation Plan” (the
1
Pursuant to Federal Rule of Appellate Procedure 42(c)(2), Administrator Pruitt
has replaced the former Administrator Gina McCarthy as a party.
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Final Rule). In particular and relevant to this motion, several of the Petitioners
challenge portions of the Final Rule establishing emission limits for the Flint
Creek, White Bluff, and Independence power plants. Petitioners also bring a range
of other challenges.
All parties to this litigation, including those with challenges related to the
power plant facilities and those with other challenges, have expressed interest in
exploring whether there is sufficient common ground on any of the challenged
portions of the Final Rule to pursue settlement. On March 1, 2017, in response to
petitions for reconsideration from the State of Arkansas, Entergy, AECC, and
EEAA, EPA notified these parties that EPA intends to grant reconsideration on
specific portions of the Final Rule, including compliance deadlines for emission
limits at the Flint Creek, White Bluff, and Independence power plants. See Ex. A.
EPA further notified these parties that it intends to administratively stay the
effectiveness of these emission limits for a period of 90 days. See id.
In light of the desired settlement negotiations, the reconsideration of
compliance deadlines for these power plants, and the administrative stay, and for
the reasons more fully set forth below, the Moving Parties respectfully request that
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the Court hold the litigation in abeyance for a period of 90 days. Counsel for EPA
has conferred with all Parties and is informed that the motion is unopposed.2
In further support of their motion, EPA states as follows:
1.
Under the CAA and EPA’s regulations, States are required to submit
state implementation plans (SIPs) containing emission limits and other measures
necessary to make reasonable progress towards the national goal of reducing
anthropogenic impairment of air visibility at certain national parks and other
designated areas. See 42 U.S.C. § 7491. If EPA finds that a SIP fails to meet the
requirements of the Act, within two years EPA must promulgate a federal
implementation plan (or FIP) to take the place of or fill the gaps in the state’s SIP.
42 U.S.C. § 7410(c)(1).
2.
In the Final Rule, EPA promulgated a FIP to take the place of
previously disapproved portions of Arkansas’ SIP. Relevant to this litigation, EPA
(1) established emission limits for nitrogen oxides (NOx) and sulfur dioxide (SO2)
at the Flint Creek, Lake Catherine, White Bluff, and Independence power plant
2
Specifically, Petitioner State of Arkansas; Industry Petitioners Domtar, Arkansas
Affordable Energy Coalition (AAEC); Entergy Arkansas, Inc., Entergy
Mississippi, Inc., and Entergy Power, LLC (collectively, Entergy); Arkansas
Electric Cooperative Corporation (AECC); and Energy and Environmental
Alliance of Arkansas (EEAA); and Environmental Petitioners Sierra Club and
National Parks Conservation Association have all indicated that they consent to a
90-day abeyance of the litigation for purposes of pursuing settlement negotiations.
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facilities, and (2) established emission limits for NOx and SO2 at the Domtar
Ashdown paper mill.
3.
Petitioners all challenge various aspects of the Final Rule, including
emission limits for Flint Creek, Lake Catherine, White Bluff, Independence, and
Domtar, and the Final Rule in its entirety. All of the petitions have been
consolidated under Case No. 16-4270. Petitioners Arkansas, Entergy, AECC, and
EEAA have also brought challenges alleging that EPA has “constructively denied”
their related petitions for reconsideration of the Final Rule;3 these have also been
consolidated under Case No. 16-4270.
4.
On February 7, 2017, Arkansas filed a motion seeking a judicial stay
of the Final Rule. Doc. No. 4499123. On February 8, 2017, Entergy, AECC, and
EEAA filed a separate motion seeking a judicial stay of the Final Rule. Doc. No.
4499749.
5.
On February 24, 2017, the Court issued docket notices for five merits
briefs filed by Petitioners in this case, with a combined word count of 51,788
words. Doc. Nos. 4505210, 4505236, 4505281, 4505296, 4505197. On the same
3
EPA notes that, by way of letter on March 1, 2017, it has notified the parties that
it intends to partially act on these petitions for reconsideration and that it has not
yet acted on the remaining portions. EPA further notes that it reserves the right to
move to dismiss the petitions for judicial review of EPA’s alleged “constructively
denial” of the petitions for reconsideration.
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day, two non-parties filed motions to submit amicus briefs. Doc Nos. 4505343,
4505429.
6.
On February 27, 2017, the Court issued a revised briefing schedule,
broadly requiring responses to the pending stay motions to be filed March 15,
2017, replies to the pending stay motions to be filed March 29, 2017, EPA’s merits
briefs to be filed May 12, 2017, intervenor briefs to be filed 7 days from the docket
notice for respondent briefs, and reply briefs to be filed 30 days from the docket
notice for respondent briefs. Doc. No. 4505897.
7.
All Parties to this litigation have expressed a desire to discuss whether
there is sufficient common ground to seek settlement on all or some of the issues
raised in the many briefs filed in this case. If this litigation is held in abeyance,
counsel for EPA intends to coordinate a number of conference calls and meetings
over the next few months to discuss the various issues in this case with the relevant
parties.
8.
In addition, on March 1, 2017, EPA notified the parties that it intends
to partially grant petitions for administrative reconsideration submitted by the State
of Arkansas, Entergy, AECC, and EEAA. Specifically, EPA is reconsidering
1) the timing of compliance with NOx emission limits at Flint Creek, White Bluff,
and Independence, 2) the appropriate low load NOx emission limits for White
Bluff and Independence, 3) the appropriate SO2 emission limits and Entergy’s
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future plans for White Bluff, and 4) the timing of compliance with SO2 emission
limits at Independence. See Ex. A. The reconsideration process will involve
additional administrative proceedings before the Agency. EPA further intends to
issue an administrative stay of the reconsidered portions of the Final Rule for a
period of 90 days. The stay will become effective upon publication in the Federal
Register. EPA is initiating the reconsideration process, in part, to facilitate
settlement negotiations. On March 6, 2017, EPA advised that through the
reconsideration process, EPA intends to propose to extend the compliance
deadlines being reconsidered by at least 90 days or account for another alternate
proposal. See Ex. B.
9.
To facilitate settlement discussions, an abeyance of the litigation is
necessary to ensure that the parties are able to adequately focus on and dedicate
their resources to settlement. EPA does not believe it would be possible to engage
in fruitful discussions at the same time it is devoting its limited resources to
preparing responses to two motions for a stay of the Final Rule, a response brief to
five petitioner briefs totaling 51,788 words, and a motion to dismiss. Moreover,
these consolidated cases involve seven petitioners, each with different interest and
constituents, a complicated collection of issues, and a highly technical record. To
discover whether settlement is an option, it will be necessary to dedicate significant
time and resources to discussing the complex settlement possibilities.
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10.
Every court has the inherent authority to stay proceedings in order to
manage its docket in the interest of judicial economy. Cottrell v. Duke, 737 F.3d
1238, 1248 (8th Cir. 2013); Lunde v. Harris, 898 F.2d 1343, 1345 (8th Cir. 1990);
see also Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). The requested stay is in
the interest of judicial economy. If the Parties eventually reach a settlement of all
or portions of the claims, there may be no need for the Court to consider some or
all of the issues raised in the pending motions, the five petitioner briefs, the two
amicus briefs, or other anticipated motions. Similarly, the administrative
reconsideration process that EPA is undertaking may result in the narrowing or
resolution of some or all of the issues raised in the petitions, obviating the need for
the Court to dedicate resources to resolving those issues.
11.
The requested abeyance of proceedings will also preserve the Parties’
resources. If the Parties are able to narrow the claims and issues before the Court,
the need for further briefing could be reduced, perhaps drastically. It would be a
waste of the Parties’ resources to continue to prepare and file complicated briefs
regarding issues that may be resolved through settlement. And the Parties may be
able to reach a settlement that could avoid potential additional disputes.
For all these reasons, EPA requests that the Court stay all proceedings in
these consolidated cases for 90 days, to begin on the date the Court rules on this
motion, in order to accommodate settlement discussions. EPA further requests that
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the Court at this time set a deadline of June 14, 2017 for responses to the pending
stay motions, a deadline of August 10, 2017 for Respondent merits briefs, and to
adjust all other deadlines in the Court’s Appeal Briefing Schedule of February 27,
2017 accordingly and that these deadlines apply absent other procedural or
withdrawal motions. If the Parties decide to pursue settlement discussions beyond
that time, the Parties may request additional time if suitable.
Dates: March 7, 2017
Respectfully submitted,
JEFFREY H. WOOD
Acting Assistant Attorney General
s/ Samara M. Spence
Samara M. Spence
United States Department of Justice
Environmental Defense Section
P.O. Box. 7611
Washington, DC 20044
(202) 514-2285
[email protected]
Barbara Nann
Assistant Regional Counsel
U.S. EPA, Region VI
Office of Regional Counsel
Counsel for Respondent EPA
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CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with Fed. R. App. P.
27(d)(2)(A) because, excluding the parts listed in Fed. R. App. 32(f), it contains
1,636 words as counted by Microsoft Word. This document also complies with
typeface and type-style requirements of Fed. R. App. P. 27(d)(1)(E) because it has
been prepared in a proportionally spaced typeface in 14-point Times New Roman
font.
Dated: March 7, 2017
s/ Samara M. Spence
SAMARA. M. SPENCE
Attorney for Respondent EPA
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CERTIFICATE OF SERVICE
I hereby certify that the above motion was filed through the Court’s
CM/ECF system on March 7, 2017, which will serve all registered counsel.
s/ Samara M. Spence
SAMARA. M. SPENCE
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EXHIBIT A
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EXHIBIT B
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