State of Oklahoma et al v. McCarthy et al

MOTION for Preliminary Injunction Pending Appeal

N.D. Okla.July 20, 2015

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA STATE OF OKLAHOMA, et al., Plaintiffs, v. GINA MCCARTHY, et al., Defendants. Case No. 15-CV-369-CVE-FHM Motion for Injunction Pending Appeal Pursuant to Federal Rule of Civil Procedure 62, Plaintiffs State of Oklahoma and Oklahoma Department of Environmental Quality (collectively, “Oklahoma”) move the Court for an injunction pending appeal. In support, Oklahoma states as follows: 1. The Court issued a final judgment in this matter denying Oklahoma’s re- quest that it enjoin Defendants from implementing, enforcing, or giving any effective to the EPA Power Plan, 79 Fed. Reg. 34,830 (June 18, 2014), or other regulation con- cerning electric utility generating units under the authority of Clean Air Act Section 111(d), 42 U.S.C. § 7411(d). See Judgment of July 17, 2015 (Doc No. 29). 2. Federal Rule of Appellate Procedure 62(c) provides that “[w]hile an ap- peal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may…grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” 3. Oklahoma has timely appealed the court’s Judgment of July 17 and its orders denying Oklahoma’s motions for preliminary injunction. See Notice of Appeal Doc. No. 30). Case 4:15-cv-00369-CVE-FHM Document 31 Filed in USDC ND/OK on 07/20/15 Page 1 of 6 2 4. In determining whether to issue an injunction pending appeal, the court must consider the general four-factor test for an injunction: (1) whether the movant is likely to succeed on the merits of its appeal; (2) whether the movant will be irreparably injured absent an injunction; (3) whether issuance of the injunction will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. See Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001). 5. As the test for an injunction pending appeal applies factors that are nearly identical to those that Oklahoma has briefed within the last several weeks, as support for this motion Oklahoma incorporates by reference its Motion for Prelimi- nary Injunction of July 1 (Doc. No. 5) and supporting brief (Doc. No. 6), its Renewed Motion for Preliminary Injunction of July 17 (Doc. No. 24), and all supporting materi- als. 6. Given that the Plaintiffs and Defendants are sovereigns or public offi- cials sued only in their official capacities and this matter concerns a matter of public law, no security is necessary to protect the opposing party’s rights. Case 4:15-cv-00369-CVE-FHM Document 31 Filed in USDC ND/OK on 07/20/15 Page 2 of 6 3 Relief Requested For these reasons, Oklahoma requests that the court enjoin Defendants from implementing, enforcing, or giving any effective to the EPA Power Plan, 79 Fed. Reg. 34,830 (June 18, 2014), or other regulation concerning electric utility generating units under the authority of Clean Air Act Section 111(d), 42 U.S.C. § 7411(d), during the pendency of Oklahoma’s appeal. Dated: July 20, 2015 /s/ Andrew M. Grossman DAVID B. RIVKIN, JR. LEE A. CASEY MARK W. DELAQUIL ELIZABETH PRICE FOLEY ANDREW M. GROSSMAN BAKER & HOSTETLER LLP Washington Square, Suite 1100 1050 Connecticut Avenue, N.W. Washington, D.C. 20002 (202) 861-1731 drivkin@bakerlaw.com Respectfully submitted, E. SCOTT PRUITT, OBA #15828 ATTORNEY GENERAL OF OKLAHOMA PATRICK R. WYRICK, OBA #21874 SOLICITOR GENERAL 313 NE 21st Street Oklahoma City, OK 73105 (405) 521-4396 (405) 522-0669 (facsimile) Service email: fc.docket@oag.state.ok.us Scott.Pruitt@oag.ok.gov Attorneys for Plaintiffs Case 4:15-cv-00369-CVE-FHM Document 31 Filed in USDC ND/OK on 07/20/15 Page 3 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA STATE OF OKLAHOMA, et al., Plaintiffs, v. GINA MCCARTHY, et al., Defendants. Case No. 15-CV-369-CVE-FHM (Proposed) Order Granting Plaintiffs’ Motion for an Injunction Pending Appeal This matter comes before the Court on the Motion for an Injunction Pending Appeal (Doc. No. 31) filed by Plaintiffs. The Court, having considered the papers filed in support of the Motion and the opposition thereto, finds that Plaintiffs have demon- strated that they are likely to succeed on the merits of their appeal, that they will suffer irreparable harm in the absence of injunctive relief, that Defendants will suffer no harm if such relief is granted, and that the public interest favors the entry of such relief. Accordingly, it is hereby ordered that: 1) Plaintiffs’ Motion for an Injunction Pending Appeal is GRANTED. 2) Defendants, their respective agents, officers, employees, successors, and all persons acting in concert with each or any of them are hereby ENJOINED AND RESTRAINED from finalizing, implementing, enforcing, or giving any effect to: a. The EPA Power Plan, 79 Fed. Reg. 34,830 (June 18, 2014), or any outgrowth of that proposal; and b. Any regulations or other action regarding electric utility generating units under the authority of Clean Air Act Section 111(d), 42 U.S.C. § 7411(d). Case 4:15-cv-00369-CVE-FHM Document 31 Filed in USDC ND/OK on 07/20/15 Page 4 of 6 3) This Order shall become effective immediately and shall continue in ef- fect until the United States Court of Appeals for the Tenth Circuit’s mandate issues in this matter. It is so ordered. Dated: _________________ By: ______________________ Hon. Claire V. Eagen U.S. District Court Judge Case 4:15-cv-00369-CVE-FHM Document 31 Filed in USDC ND/OK on 07/20/15 Page 5 of 6 Certificate of Service I hereby certify that on July 20, 2015, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Northern District of Oklahoma by using the Court’s ECF system. Service was accomplished on the fol- lowing by the ECF system: Justin David Heminger US Department of Justice 601 D Street, N.W. Washington, D.C. 20004-0663 202-514-2689 justin.heminger@usdoj.gov Attorney for Defendants By: /s/ Andrew M. Grossman Case 4:15-cv-00369-CVE-FHM Document 31 Filed in USDC ND/OK on 07/20/15 Page 6 of 6