Respondent
EPA's
Motion
to
Extend
Time
to
File
Petitions
for
Rehearing
or
Rehearing
En
Bane,
State
of
North
Carolina,
et
al.
v.
LJnited
States
Environmental
Protection
Agency,
No.
05-1244
(and
consolidated
cases)
(August
8,
2008);
Order,
State
of
North
Carolina
v.
Environmental
Protection
Agency,
No.
05.1244
(August
15,
2008).
Electronic Filing - Received, Clerk's Office, October 1, 2008
* * * * * PCB 2009-021 * * * * *
FOR
THE
DISTRICT
OF
COLUMBIA
CIRCUIT
)
STATE
OF
NORTH
CAROLINA,
et
al.
)
)
Petitioners,
)
)
v.
)
)
UNITED
STATES
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
)
)
Docket
No.
05-1244
(and
consolidated
cases)
EXPEDITED
CONSIDERATION
REQUESTED
RESPONDENT
EPA'S
MOTION
TO
EXTEND
TIME
TO
FILE
PETITIONS
FOR
REHEARING
OR
REHEARING
EN
BANC
Respondent
United
States
Environmental
Protection
Agency
("EPA")
respectfully
requests
that
the
Court
extend
by
30
days,
from
August
25,
2008,
until
September
24,
2008,
the
date
by
which
any
petition
for
panel
rehearing
and/or
rehearing
en
banc
of
the
Court's
July
11,2008,
opinion
in
thiscase
must
be
filed.
Counsel
for
EPA
has
contacted
counsel
for
the
other
parties
in
this
action
to
determine
their
position
on
this
motion.
Petitioner
Constellation
Energy
was
not
able
to
provide
its
position
prior
to
the
filing
ofthis
motion.
The
only
other
party
Electronic Filing - Received, Clerk's Office, October 1, 2008
* * * * * PCB 2009-021 * * * * *
other
parties
have
statedthat
they
do
not
intend
to
file
an
opposition.
Intervenors
Utility
Air
Regulatory
Group,
Natural
Resources
Defense
Council,
Ohio
Environmental
Council,
US
PIRG,
Environmental
Defense,
and
Midwest
Generation
have
stated
they
consent
to
the
motion.
Petitioners
South
Carolina
Public
Service
Authority,
JEA,
Entergy,
AES
Corporation,
AES
Beaver
Valley
LLC,
AES
Warrior
Run
LLC,
Xcel
Energy,
Occidental
Permian
Ltd,
City
of
Amarillo,
Inter-Power/
AhICori
Partners,
and
Intervenor
National
Mining
Association
have
statedthat
they
do
not
oppose
the
motion.
Petitioners
State
of
North
Carolina,
ARIPP
A,
Florida
Association
of
Electric
Utilities,
FPL
Group,
Northern
Indiana
Public
Service
Company,
South
Carolina
Electric
and
Gas
Company,
Duke
Energy
Company,
and
Intervenor
Alabama
Power
Company
have
stated
that
they
do
not
consent
to
the
motion
but
do
not
intend
to
oppose
it.
EPA
requests
expedited
consideration
of
this
motion
because
of
the
impending
deadline
for
filing
petitions
for
rehearing
or
rehearing
en
banco
Only
one
party
has
stated
that
it
opposes
this
motion.
However,
if
the
full
time
is
taken
to
brief
the
motion,
briefing
will
not
be
complete
until
the
current
deadline
passes.
EPA
does
not
believe
the
question
of
an
extension
poses
complex
issues
and
thus
2
Electronic Filing - Received, Clerk's Office, October 1, 2008
* * * * * PCB 2009-021 * * * * *
The
grounds
for
this
motion
are
1.
These
consolidated
petitions
for
review
challenged
various
aspects
of
EPA's
Clean
Air
Interstate
Rule
("CAIR"),
in
which
EPA
had
found
that
a
number
of
States
in
the
eastern
United
States
contributed
to
nonattainment
of
the
National
Ambient
Air
Quality
Standards
for
ozone
and/or
fine
particulate
matter
in
other
States
and
required
those
States
to
modify
their
SIPs
to
eliminate
that
significant
contribution.
CAIR
also
established
a
regional
emissions
trading
program.
2.
In
its
July
11,2008,
opinion
the
Court
granted
the
petitions
in
part
and
vacated
CAIR
in
its
entirety.
3.
The
United
States
is
currently
considering
whether
to
file
a
petition
for
panel
rehearing
and/or
rehearing
en
bane
of
the
Court's
opinion.
The
date
by
which
such
a
petition
must
be
filed
is
August
25,
2008.
4.
The
United
States
requests
an
additional
30
days,
until
September
24,
2008,
for
parties
to
file
any
petition
for
rehearing
and/or
rehearing
en
bane.
This
request
is
necessary
to
allow
the
Solicitor
General,
in
coordination
with
the
other
branches
ofthe
Department
of
Justice
and
the
Environmental
Protection
Agency,
to
complete
consideration
of
whether
to
file
such
a
petition.
Additional
time
will
3
Electronic Filing - Received, Clerk's Office, October 1, 2008
* * * * * PCB 2009-021 * * * * *
regulatoryscheme
involved,
the
need
to
review
the
impact
of
the
Court'sdecision
on
the
Clean
Air
Act
programs
administered
by
EPA
and
the
States,
and
the
need
to
consult
with
affected
parties
concerning
the
impact
of
the
Court's
vacatur
of
CAIR.
6.
EPA
has
contacted
counsel
for
all
the
parties
in
this
case,
and
was
able
to
determine
the
position
of
all
parties
except
Constellation
Energy.
Of
those
parties,
only
Minnesota
Power
has
stated
that
it
opposes
this
motion.
THEREFORE,
for
the
reasons
stated
above,
EPA
requests
that
the
time
to
file
any
petition
for
panel
rehearing
and/or
rehearing
en
banc
in
thiscase
be
extended
until
September
24,
2008.
EPA
further
requests
that
this
briefing
and
consideration
of
this
motion
be
expedited.
Respectfully
submitted,
RONALD
J.
TENPAS
Assistant
Attorney
General
4
Electronic Filing - Received, Clerk's Office, October 1, 2008
* * * * * PCB 2009-021 * * * * *
Environmental
Environment
&
Natural
Resources
Division
United
States
Department
of
Justice
P.O.
Box
23986
Washington,
D.C.
20026-3986
(202)
616-7568
Counsel
for
Respondents
Of
Counsel:
SONJA
RODMAN
STEVEN
SILVERMAN
GEOFFREY
WILCOX
Office
of
General
Counsel
U.
S.
Environmental
Protection
Agency
1200
Pennsylvania
Ave.,
NW
Washington,
DC
20460
August
8,
2008
5
Electronic Filing - Received, Clerk's Office, October 1, 2008
* * * * * PCB 2009-021 * * * * *
James
C.
Gulick,
SDAG
J.
Allen
Jernigan,
SDAG
Marc
Bernstein,
AAG
N.C.
Department
of
Justice
P.O.
Box
629
Raleigh,
NC
27602-0629
Joshua
Bradford
Frank
Baker
&
Botts
1299
Pennsylvania
Ave.,
N.W.
The
Warner,
Ste
13
00
West
Washington,
D.C.
20004-2400
David
A.
Savage
Baker
Botts
98
San
Jacinto
Boulevard,
Ste.
1500
Austin,
TX
78701-4039
William
H.
Lewis,
Jr.
Michael
W.
Steinberg
Morgan,
Lewis
&
Bockius
LLP
I111
Pennsylvania
Avenue,
NW
Washington,
DC
20004
Bart
E.
Cassidy
Carol
A.
Fitzpatrick
Manko,
Gold,
Katcher
&
Fox
401
City
Avenue,
Ste.
500
Bala
Cynwyd,
PA
19004
Brian
J.
McManus
Robin
1.
Juni
Jones
Day
51
Louisiana
Ave.,
N.W.
Washington,
D.C.
20001-2113
Randolph
R.
Mahan
Director,
Corporate
Environmental
Services
.
SCANA
Services,
Inc.
1426
Main
Street
Columbia,
SC
29218
James
S.
Alves
Robert
A,
Manning
Winston
K.
Borkowski
Hopping
Green
&
Sams,
P.A.
123
South
Calhoun
Street
Tallahassee,
Fl.
3230
I
Alvin
B.
Davis,
PA
John
T.
Butler
Steel
Hector
&
Davis
LLP
200
South
Biscayne
Bvd.,
Ste.
4000
Miami,
FI
33131-2398
Sheldon
A.
Zabel
Schiff
Hardin
LLP
233
South
Wacker
Drive
.
6600
Sears
Tower
Chicago,
1L
60606
Sam
Kalen
Van
Ness
Feldman
1050
Thomas
Jefferson
St,
NW,
7
1h
floor
Washington,D.C.
20007
Steven
Shimberg
Deborah
Jennings
DLA
Piper
Rudnick
Gray
Cary
US,
LLP
1200
19
th
Street,
NW
Washington,
DC
20036
Electronic Filing - Received, Clerk's Office, October 1, 2008
* * * * * PCB 2009-021 * * * * *
Clean
Air
Task
Force
7
Liberty
Hill
Road
Building
2,
Suite
205
P.O.
Box
950
Henniker,
NH
03242
Jeffery
A.
Knight
Pillsbury
Winthrop
Shaw
Pittman
LLP
2300
N
Street,
NW
Washington,
DC
20037-1128
Michael
Robert
Barr
Pillsbury
Winthrop
Shaw
Pittman
LLP
1600
Tysons
Boulevard
McLean,
VA
22102
Matthew
Levine
Assistant
Attorney
General
55
Elm
Street
P.O.
Box
120
Hartford,
CT
06141-0120
Norman
W.
Fichthorn
Hunton
&
Williams
LLP
1900
K
Street,
NW
Washington,
DC
20006
Lisa
M.
Jaeger
Bracewell
&
Giuliani
LLP
2000
K
Street,
N.W.,
Suite
500
Washington,
D.C.
20006
Sean
H.
Donohue
Environmental
Defense
2000
L
Street,
NW
Ste
808
Washington,
DC
20036
Frank
Hilton
Lancaster
Tennessee
Valley
Authority
400
West
Summit
Hill
Drive
Kp.oxville,
TN
37902
Vickie
Patton
Environmental
Defense
2334
N.
Broadway
Boulder,
CO
80304
Claudia
M.
O'Brien
Latham
&
Watkins
555
Eleventh
Street,
N.W.
Suite
1000
Washington,
DC
20004-1304
J.
Jared
Snyder
Robert
M.
Rosenthal
Assistant
Attorneys
General
The
Capitol
Albany,
NY
12224
Jean
Reilly
Ruth
Carter
Deputy
Attorneys
General
Richard
J.
Hughes
Justice
Complex
25
Market
Street,
P.O.
Box
093
Trenton,
NJ
08625-4503
Peter
Glaser
Troutman
Sanders
LLP
401
9th
Street,
NW,
Suite
1000
Washington,
DC
20004-2134
Richard
P.
Mather,
Sr.
Kristen
M.
Campfield
Dept.
of
Environmental
Protection
RCSOB,
9th
Floor
P.O.
Box
8464
Harrisburg,
PA
17105-8464
Electronic Filing - Received, Clerk's Office, October 1, 2008
* * * * * PCB 2009-021 * * * * *
KL
Norman
1.
Rave,
Jr.
Electronic Filing - Received, Clerk's Office, October 1, 2008
* * * * * PCB 2009-021 * * * * *
State
of
North
Carolina,
Petitioner
v.
Environmental
Protection
Agency,
Respondent
Utility
Air
Regulatory
Group,
et
aI.,
Intervenors
Consolidated
with
05-1246,
05-1249,
05-1250,
05-1251,05-1252,05-1253,05-1254,
05-1256,05-1259,05-1260,05-1262,
06-1217,06-1222,06-1224,06-1226,
06-1227,06-1228,06-1229,06-1230,
06-1232,06-1233,06-1235,06-1236,
06-1237,06-1238,06-1240,06-1241,
06-1242,06-1243,06-1245,07-1115
UNITED
STATf:O:
GOUkl
OF
APPEALS
FOR
DiSTRICT
OF
L:Ol
UMBIA
CIRCUIT
"'"
I
AUG
15
2008
I
CLERK
BEFORE:
Sentelle,
Chief
Judge,
and
Rogers
and
Brown,
Circuit
Judges
ORDER
Upon
consideration
of
respondent's
motion
to
extend
time
to
file
a
petition
for
rehearing
and/or
petition
for
rehearing
en
banc,
and
the
supplemental
notice
thereto,
it
is
ORDERED
that
the
motion
be
granted.
Any
petition
for
rehearing
and/or
rehearing
en
banc
is
now
due
September
24,
2008.
Per
Curiam
FOR
TJ;I.I:
COURT:
....--rviark
(-
LJ~~er,
,CJerJ<l
BY:
/~y-
Lu,~
Michael
C.
McGrail
Deputy
Clerk
Electronic Filing - Received, Clerk's Office, October 1, 2008
* * * * * PCB 2009-021 * * * * *
Various
Senators,
Letter
to
Tom
Kuhn,
President,
Edison
Electric
Institute
(August
12,
2008).
Electronic Filing - Received, Clerk's Office, October 1, 2008
* * * * * PCB 2009-021 * * * * *
Tom
Kuhn,
President
Edison
Electric
Institute
701
Pelmsy]vania
Avenue,
N.W.
Washington,
D.C.
20004-2696
Dear
Mr.
Kulm,
We
are
writing
to
request
assistance
from
you
and
member
companies
of
the
Edison
Electric
Institute
in
securing
the
health
and
environmental
benefits
that
would
have
resulted
from
compliance
with
the
Clean
Air
Interstate
Rule
(CAIR).
Specifically,
we
request
your
assistance
in
securing
a
pledge
from
all
affected
EEl
member
companies
that
they
will
operate
existing
sulfur
dioxide
(S02)
and
nitrogen
oxide
(NOx)
emissions
control
equipment
and
continue
their
plans
to
install
additional
S02
and
NOx
control
equipment
in
order
to
at
least
meet
the
emissions
reduction
targets
and
deadlines
under
CAIR.
The
July
1111.
decision
by
the
U.S.
Court
of
Appeals
for
the
D.C.
Circuit
vacating
CALR
leaves
eonmmnities
throughout
the
Eastern
half
of
the
United
States
vulnerable
to
dangerous
levels
of
soot
and
smog
pollution.
Without
the
reductions
required
by
CAIR
in
power
plant
emissions
of
sulfur
dioxide
and
nitrogen
oxide,
thousands
of
communities
will
be
exposed
to
unhealthy
air
linked
to
asthma
attacks,
heart
and
lung
disease,
and
premature
death.
We
are
exploring
legislative
options
to
restore
the
clean
air
benefits
that
would
have
resulted
from
CAIR.
However,
we
are
concerned
thatduring
the
time
it
takes
to
dralt
and
pass
legislation,
millions
of
Americans
in
the
Eastern
United
States
will
be
exposed
to
harnlflll
pollutants
that
otherwise
would
have
been
eliminated
by
CAIR.
We
therefore
seck
your
a~sistance
in
preventing
this
unnecessaly
pollution
from
harming
Our
communities.
Given
the
significant
challenges
states
face
to
comply
with
more
stringent
ozone
and
particulate
matter
air
quality
standards
in
the
absence
of
CAIR,
and
because
of
the
enormous
public
health
and
environmental
concerns
associated
with
power
plant
S02
and
NOx
emissions,
we
are
conGdent
that
Congress
and
the
Administration
will
require
power
plant
emissions
reductions
atlea~t
as
stringent
as
CAIR,
and
likely
stronger.
We
know
that
many
EEl
member
companies
already
are
taking
steps
to
comply
with
CAIR.
Some
have
installed
sulfur
dioxide
scrubbers
and
nitrogen
oxide
controls,
while
Electronic Filing - Received, Clerk's Office, October 1, 2008
* * * * * PCB 2009-021 * * * * *
Sincerely,
Thomas
R.
Ca
r
U.S.
Senator
Lamar
Alexander
U.S.
Senator
Jl4/~
Bernard
Sanders
U.S.
Senator
Electronic Filing - Received, Clerk's Office, October 1, 2008
* * * * * PCB 2009-021 * * * * *
