I finally caught up with the brief filed by the government last week, opposing the motion to stay the EPA Clean Power Plan rule, pending full judicial review.  I just don’t see the stay being granted (of course, I did not see it coming with the WOTUS rule, either, so I’m not quite infallible).  The motion should fail on both the irreparable injury and public interest prongs of the test for issuance of a stay.

The part of the brief that I found most interesting, though, was the argument on the likelihood of success on the merits, since it gives a darn good preview of how DOJ will defend the rule.  I still think that EPA could ultimately lose, but it’s a very strong brief and the argument is really well put together.  Here are just a few highlights of what is obviously a complicated issue with lots of moving parts.

• With respect to the “beyond the fenceline” issue, EPA makes a strong defense of the regulation on simple practical grounds:

Under Movants’ position, EPA would be compelled to apply an obviously inferior emission reduction system: either one far more expensive, or one that would not meaningfully address the threats presented.

• EPA also nicely skewers a number of the petitioners, by noting that these same petitioners defended the Bush-era 111(d) rule on mercury, which also provided for a “beyond the fenceline” approach to compliance.

• Finally, EPA also persuasively deflates the argument that the rule unfairly coerces the states, in violation of the 10^th Amendment:

the Rule is no “gun to the head”; indeed, it cannot fairly be called a stick. Rather, by allowing states to design their own plans, it offers them a carrot that they are free to refuse.

To which I can only say, well put.

Perhaps I should really only have said that the Court should not issue the stay; it’s above my pay grade to know what the Court will in fact do.  I will say that John Cruden and his team at DOJ have maximized their chances.