r1 I AUGiZO14 I 2014 IN THE UNITED STATES COURT OF APPE ALS CLERK FOR THE DISTRICT OF COLUMBIA U4T -- STATE OF WEST VIRGINIA, STATE OF ALABAMA,

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1 FOR THE DISTRICT OF COLUMBIA U4T -- UNITED STATES COURT OF APPE ALS CLERK I 2014 IN THE r1 I AUGiZO14 proposing and then finalizing a rule requiring States to regulate existing coal-fired to which United States Environmental Protection Agency ( EPA ) conirnitted to U.S.C et seq. ( CAA ), for review of a final settlement agreement pursuant 15(a) of the Federal Rules of Appellate Procedure and the Clean Air Act, 42 Commonwealth of Kentucky, respectfully petition this Court, pursuant to Rule Nebraska, Ohio, Oklahoma, South Dakota, South Carolina, and Wyoming, and the The States of West Virginia, Alabama, Indiana, Kansas, Louisiana, Respondent. PROTECTION AGENCY, UNITED STATES ENVIRONMENTAL v. CaseNo. 1q_.1iA Petitioners, PETITION FOR REVIEW COMMONWEALTH OF KENTUCKY, STATE OF INDIANA, STATE OF KANSAS, STATE OF WEST VIRGINIA, STATE OF ALABAMA, STATE OF LOUISIANA, SOUTH CAROLINA, STATE OF SOUTH DAKOTA, and STATE OF NEBRASKA, STATE OF OHIO, STATE OF OKLAHOMA, STATE OF STATE OF WYOMING FOR DISTRICT OF COLUM81A CIRCUIT F USCA Case # Document # Filed: 08/01/2014 Page 1 of 18 -ii+ (UUHI ul- /rtj\l

2 settlement agreement is between EPA and various non-party States, governmental entities and private organizations who had threatened litigation against the agency. USCA Case # Document # Filed: 08/01/2014 Page 2 of 18 2 a final agency action within 60 days of an occurrence of an event that ripens a Court has held that under this statutory exception, a party may bring a challenge to that are based solely on grounds that occur after the 60-day period. Id. This CAA specifically recognizes an exception to the 60-day requirement for claims approval, or action appears in the Federal Register. 42 U.S.C. 7607(b)(1). The to be brought within sixty days from the date notice of such promulgation, statutory after-arising-ripeness exception. The CAA requires a petition for review The present petition is, at a minimum, timely under the Clean Air Act s actions of EPA pursuant to the CAA, 307(b)(l), 42 U.S.C 7607(b)(1). 111(d) existing coal-fired power plants rule. This Court has jurisdiction over final otherwise altering EPA s commitment to propose and then to finalize a Section settlement agreement to change certain suggested dates for EPA s actions, without Fulton, General Counsel (March 2, 2011). On June 13, 2011, EPA modified the See Memorandum from Scott Jordan, Air and Radiation Law Office, to Scott C. period, the settlement agreement was approved as final by EPA on March 2, See 75 Fed. Reg. 82,392 (Dec. 30, 2010). Following a notice and comment EPA published a notice of the proposed settlement agreement on December 30, power plants under Section 111(d) of the CAA, see 42 U.S.C. 7411(d). The

3 Cir. 2012), aff d in part and vacated in part on other grounds by Utility Air Reg. Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014). USCA Case # Document # Filed: 08/01/2014 Page 3 of legal-memorandum.pdf. available at http ://www2.epa.gov/sites/production/files/ /documents/ for Existing Electric Utility Generating Units ( Legal Memorandum or EPA, Legal Memorandum for Proposed Carbon Pollution Emission Guidelines retains the legal authority to issue just such a Section 111(d) rule. Consistent with EPA issued a legal memorandum explaining that EPA had determined that it any Section 111(d) coal-fired power plants rule plainly unlawful, on June 2, 2014, (Feb. 16, 2012). Notwithstanding the fact that these developments had rendered stationary sources that included coal-fired power plants. See 77 Fed. Reg. 9,304 (2011). Then, on February 16, 2012, EPA finalized Section 112 regulations on [Section 112]. Am. Elec. Power, Inc. v. Connecticut, 131 S. Ct. 2527, 2537 n.7 question are regulated under... the hazardous air pollutants program, 7411(d) may not employ [Section 111(d)] if existing stationary sources of the pollutant in a rule clearly unlawful. On June 11, 2011, the Supreme Court explained that EPA coal-fired power plants notwithstanding intervening events that have rendered such has legal authority to propose and adopt a rule under Section 111(d) regarding ripened, for purposes of the exception, when EPA declared its final position that it Petitioners claim challenging the legality of the settlement agreement claim. Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 129 (D.C.

4 Section 111(d). 2 the Federal Register a proposed rule regarding coal-fired power plants under USCA Case # Document # Filed: 08/01/2014 Page 4 of Fed. Reg. 34,830 (June 18, 2014). agreement by continuing the present ongoing comment period regarding EPA s under Section 111(d); (3) to enjoin EPA from complying with the settlement extent that the settlement commits EPA to finalizing a coal-fired power plant rule rule under Section 111(d); (2) to hold the settlement agreement unlawful to the the extent that the settlement commits EPA to proposing a coal-fired power plant Petitioners ask this Court: (1) to hold the settlement agreement unlawful to committed to proposing and then finalizing under the settlement agreement. Id. measures in the coming months to meet the demands of the unlawful rule that EPA Court s prompt intervention, Petitioners will be forced to undertake burdensome withholding court consideration now would be substantial because without this Gardner, 387 U.S. 136, 149 (1967). In addition, the hardship to the parties of legality of the settlement became ripe for judicial resolution. Abbott Labs. v. authority that the fitness of the issues that Petitioners seek to raise against the It was not until EPA s announcement of its flawed view of its Section 111(d) In light of these developments, both elements of ripeness are now satisfied. this legal memorandum and the settlement, on June 18, 2014, EPA announced in

5 plants rule under Section 111(d); (5) to vacate the settlement agreement in relevant from complying with the settlement agreement by finalizing a coal-fired power USCA Case # Document # Filed: 08/01/2014 Page 5 of 18 5 Luther Strange Attorney General of Alabama Solicitor General Andrew Brasher Montgomery, AL Washington Ave. YtñL&&r rkv / Mr Counsel for Petitioner State of West State Capitol Building 1, Room 26-E Fax (304) elbert.1inwvago.gov Tel. (304) J. Zak Ritchie Patrick Morrisey Attorney General of West Virginia Elbert Lin Solicitor General Misha Tseytlin Assistant Attorney General Charleston, WV Virginia L& Dated: July 31, 2014 Respectfully submitted, part; and (6) to grant such other relief as this Court deems appropriate. proposed coal-fired power plants rule under Section 1.11(d); (4) to enjoin EPA

6 Counselfor Petitioner State ofalabama USCA Case # Document # Filed: 08/01/2014 Page 6 of Capital Avenue Attorney General of Kentucky Jack Conway Chief Sean Riley counselfor Petitioner State ofkansas Tel. (785) jeff.chanay@ag.ks.gov Attorney General of Kansas Derek Schmidt Fax (785) SW 10th Avenue, 3d Floor Jeffrey A. Chanay Topeka, KS c/m C ounseifor Petitioner State ofindiana Tel. (317) torn.fisher@atg.in.gov 302 West Washington Street Indiana Government Ctr. South, Fifth Floor Gregory F. Zoeller Attorney General of Indiana Timothy Junk Indianapolis, IN / MY abrasher@ago.state.al.us Tel. (334)

7 Sean.Rileyag.ky.gov Tel: (502) USCA Case # Document # Filed: 08/01/2014 Page 7 of 18 7 Eric E. Murphy State Solicitor /LC.L twjtt/ /ili Attorney General of Ohio Michael DeWine Counselfor Petitioner State ofnebraska Jon Bruning Katie.spohn@nebraska.gov 2115 State Capitol Tel. (402) Lincoln, NE Attorney General of Nebraska Katie Spohn / counselfor Petitioner State oflouisiana Tel. (225) N. Third Street Megan K. Terrell Attorney General of Louisiana Deputy Director, Civil Division Baton Rouge, LS James D. Buddy Caidwell Terrel1Mag.state.Ia.us / Kentucky counsel for Petitioner commonwealth of Frankfort, KY Suite 118

8 Tel. (614) Columbus, OH USCA Case # Document # Filed: 08/01/2014 Page 8 of 18 8 Application for admission forthcoming. Carolina Counsel for Petitioner State of South Attorney General of South Carolina Robert D. Cook Solicitor General James Emory Smith, Jr. Fax (803) P.O. Box ESmithscag.gov Tel. (803) Deputy Solicitor General Columbia, SC counsel ofrecord Ai an Wilson 1 Le1 /y//tr counselfor Petitioner State of Oklahoma Clayton.Eubanks@oag.ok.gov Tel. (405) N.E. 21St Street P. Clayton Eubanks Attorney General of Oklahoma Patrick R. Wyrick Solicitor General Deputy Solicitor General Oklahoma City, OK E. Scott Pruitt Pafrc L/. 6cJ / Counselfor Petitioner State of Ohio eric.murphy@ohioaftorneygeneral.gov 30 E. Broad St., 17th Floor 3

9 USCA Case # Document # Filed: 08/01/2014 Page 9 of 18 9 Counselfor Petitioner State of Wyoming James Kaste Michael J. McGrady jeremiah.williamson@wyo.gov Coimsel ofrecord Fax (307) Tel. (307) Attorney General of Wyoming Senior Assistant Attorney General Jeremiah I. Williamson Assistant Attorney General Cheyenne, WY State Capitol P d ter K. Michael QLcJ c9. r Dakota Counsel for Petitioner State of South roxanne.giedd@state.sd.us Pierre, SD E. Highway 14, Suite 1 Tel. (605) counsel ofrecord Attorney General of South Dakota Roxanne Giedd Marty J. Jackley

10 USCA Case # Document # Filed: 08/01/2014 Page 10 of 18 (Petitioner), the State of Nebraska (Petitioner), the State of Ohio (Petitioner), the (Petitioner), the Commonwealth of Kentucky (Petitioner), the State of Louisiana of Alabama (Petitioner), the State of Indiana (Petitioner), the State of Kansas The parties in this case are the State of West Virginia (Petitioner), the State (A) Parties and Amici: Pursuant to Circuit Rules 1 5(c)(3) and 28(a)(1), Petitioners state as follows: RULINGS, AND RELATED CASES PETITIONERS PROVISIONAL CERTIFICATE AS TO PARTIES, Respondent. PROTECTION AGENCY, UNITED STATES ENVIRONMENTAL v. Case No. SOUTH CAROLINA, STATE OF SOUTH DAKOTA, and COMMONWEALTH OF KENTUCKY, STATE OF WEST VIRGINIA, STATE OF ALABAMA, STATE OF INDIANA, STATE OF KANSAS, STATE OF LOUISIANA, STATE OF NEBRASKA, STATE OF OHIO, STATE OF STATE OF WYOMING, Petitioners, PETITION FOR REVIEW OKLAHOMA, STATE OF FOR THE DISTRICT OF COLUMBIA CIRCUIT IN THE UNITED STATES COURT OF APPEALS

11 States Environmental Protection Agency (Respondent). There are currently no of South Dakota (Petitioner), the State of Wyoming (Petitioner), and the United USCA Case # Document # Filed: 08/01/2014 Page 11 of 18 2 J. Zak Ritchie Patrick Morrisey Elbert Lin Solicitor General Misha Tseytlin Attorney General of West Virginia /L Dated: July 31, 2014 Respectfully submitted, In re: Murray Energy corporation, No (C) Related Cases: was approved by EPA on March 2, 2011 and modified on June 13, Defense Council, Sierra Club, and Environmental Defense Fund. The settlement Massachusetts, the District of Columbia, the City of New York, Natural Resources Oregon, Rhode Island, Vermont, and Washington, the Commonwealth of States of New York, California, Connecticut, Delaware, Maine, New Mexico, Under review in this case is a settlement agreement between EPA and the (B) Rulings Under Review: intervenors or amici. State of Oklahoma (Petitioner), the State of South Carolina (Petitioner), the State

12 Charleston, WV Fax (304) Tel. (304) USCA Case # Document # Filed: 08/01/2014 Page 12 of 18 3 Attorney General of Kansas Del chmidt / r Counselfor Petitioner State ofindiana tom.fisheratg.in.gov Tel. (317) Gregory F. Zoeller Attorney General of Indiana Timothy Junk Indiana Government Ctr. South, Fifth Floor Indianapolis, IN West Washington Street / c-t Counselfor Petitioner State ofalabama Tel. (334) Washington Ave. counsel ofrecord Solicitor General abrasher@ago.state.al.us Luther Strange Attorney General of Alabama Andrew Brasher Montgomery, AL //Lv- YtZdJlQ / A ct Virginia counsel for Petitioner State of West elbert.lin@wvago.gov State Capitol Building 1, Room 26-E Assistant Attorney General

13 120 SW i 0th Avenue, 3d Floor USCA Case # Document # Filed: 08/01/2014 Page 13 of 18 4 counselfor Petitioner State oflouisiana Terrel1Mag.state.1a.us Tel. (225) Megan K. Terrell Baton Rouge, LS N. Third Street Attorney General of Louisiana Deputy Director, Civil Division James t5. Buddy Caidwell Mi X. / Kentucky 700 Capital Avenue Tel: (502) Frankfort, KY Chief Counsel for Petitioner commonwealth of Sean Riley Suite Sean.Ri1eyag.ky.gov Attorney General of Kentucky Jack Conwa)W / /L G7 Counselfor Petitioner State ofkansas jeff.chanay@ag.ks.gov Fax (785) Tel. (785) Topeka, KS Jeffrey A. Chanay

14 Attorney General of Nebraska USCA Case # Document # Filed: 08/01/2014 Page 14 of 18 5 Application for admission forthcoming. Tel. (405) Patrick R. Wyrick Solicitor General Deputy Solicitor General Oklahoma City, OK N.E. 21st Street E. Scott Pruitt P. Clayton Eubanks ounsei ofrecord Attorney General of Oklahoma Pak k. 4)vJc / Ac-1 counselfor Petitioner State of Ohio eric.rnurphyohioattorneygeneral.gov Tel. (614) E. Broad St., 17th Floor Eric E. Murphy State Solicitor Michael DeWine Attorney General of Ohio Columbus, OH v;c E. (itut counselfor Petitioner State ofnebraska Tel. (402) State Capitol Katie.spo1mnebraska.gov Katie Spohn Lincoln, NE Jon Bruning / ct

15 USCA Case # Document # Filed: 08/01/2014 Page 15 of 18 6 James Kaste Attorney General of Wyoming Yeter K. Michael th-j /A-r Dakota Counsel for Petitioner State of South roxanne.giedd@state.sd.us Tel. (605) Marty J. Jackley Pierre, SD E. Highway 14, Suite I C ounsel ofrecord Attorney General of South Dakota Roxanne Giedd A41 carolina counsel for Petitioner State of South ESmith@scag.gov P.O. Box Tel. (803) Robert D. Cook James Emory Smith, Jr. Fax (803) Attorney General of South Carolina Solicitor General Deputy Solicitor General Xlan Wilson Columbia, SC M-J9< / -w Counselfor Petitioner State of Oklahoma Clayton.Eubanksoag.ok.gov

16 Jeremiah I. Williamson Assistant Attorney General USCA Case # Document # Filed: 08/01/2014 Page 16 of 18 7 couiisel for Petitioner State of Wyoming jeremiah.williamson@wyo.gov Fax (307) Tel. (307) Cheyenne, WY State Capitol Senior Assistant Attorney General Michael J. McGrady

17 Statement, Petition for Review, and Petitioners Provisional Certificate as to I hereby certify that I will cause to be served a true copy of the Docketing USCA Case # Document # Filed: 08/01/2014 Page 17 of 18 West Virginia Counselfor Petitioner State of Elbert Lin Dated: July 31, 2014 Respectfully submitted, United States Environmental Protection Agency Office of General Counsel, 231 OA Washington, DC Pennsylvania Ave., NW 1200 Pennsylvania Ave., N.W. Regina A. McCarthy, Administrator United States Environmental Protection Agency Office of the Administrator, I lola Washington, DC upon the following: Parties, Rulings, and Related Cases via U.S. mail on the 1St day of August, 2014, CERTIFICATE OF SERVICE

18 Washington, DC Phone: I Facsimile: Constitution Avenue, NW August 2009 (REVISED) USCA Form 41 Name of counsel for Appellant/Petitioner Elbert Lin, Solicitor General, State of West Virginia Signature : &4Iht Note: if counsel for any other party believes that the information submitted is inaccurate or incomplete, counsel may so Address State capitol, Bldg. 1, Room E-26, Charleston, WV advise the Clerk within 7 calendar days by letter, with copies to all other parties, specifically referring to the challenged statement. ATTACH A CERTIFICATE OF SERVICE eibert.linwvago.gov Phone (304) Fax M Date alternative for dispute resolution? C Yes No If YES, provide program name and participation dates. h. Have the parties attempted to resolve the issues in this case through arbitration, mediation, or any other In re Murray Energy Corp., No Yes C No If YES, give case name(s) and number(s) of these cases and identify court/agency: Court, or the Supreme Court which involve substantially the same issues as the instant case presents? g. Are any other cases, to counsel s knowledge, pending before the agency, this Court, another Circuit f. Are any other cases involving the same underlying agency order pending in this Court or any other? settlement agreement each independently harm the Petitioner States. Both the proposed rule and the final rule that EPA committed to promulgating under the e. Identify the basis of appellant s/petitioner s claim of standing. S D.C. Cir. Rule 15(c)(2): C Yes No If YES, identify case name(s), docket number(s), and court(s) Has the agency acted? C; Yes C No If so, when? c. Give date(s) of order(s): March 2, 2011 b. Give agency docket or order number(s): EPA-HQ-OGC IS ThiS CASE REQUIRED BY STATUTE TO BE EXPEDITED? C: Yes ( No If YES, cite statute If so, when was it filled? By whom? 4. TYPE OF CASE: FW Review El Appeal Fi Enforcement F Complaint a. identity agency wnose order is to be reviewed: Environmental Protection Agency Environmental 3. CASE NAME (lead parties only) The State of West Virginia 6. GASE.JNFORMATJON: d. Has a request for rehearing or reconsideration been filed at the agency? C Yes No Protection Agency C 2. DATE DOCKETED: F Tax Court 1. CASE NO. Administrative Agency Review Proceedings (To be completed by appellant/petitioner) AGENCY DOCKETING STATEMENT DISTRICT OF COLUMBIA CIRCUIT UNITED STATES COURT OF APPEALS USCA Case # Document # Filed: 08/01/2014 Page 18 of 18