Gavin Power, LLC v. United States Environmental Protection Agency et al

Filing 29

OPINION and ORDER granting 20 Motion to Stay this case pending the outcome of an action in the United States Court of Appeals for the District of Columbia Circuit. The parties are ORDERED to file a joint report explaining the status of Gavin I EVERY SIXTY DAYS. Signed by Judge Michael H. Watson on 3/27/24. (sem)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Gavin Power, LLC,
Plaintiff,

Case No. 2:24-cv-41

V.

Judge Michael H. Watson

United States Environmental

Magistrate Judge Deavers

Protection Agency, etal.,
Defendants.

OPINION AND ORDER

The United States Environmental Protection Agency ("E. P.A. ") and Michael S.
Regan (collectively, "Defendants") move to stay this case pending the outcome of an
action in the United States Court of Appeals for the District of Columbia Circuit. ECF
No. 20. For the following reasons, the motion is GRANTED.
I.

In 2018, the D. C. Circuit ruled that coal-fired power plants (the "Plants") must
close certain disposal impoundments (the "Closure"). USWAG v. EPA, 901 F. 3d
414 (D. C. Cir. 2018). In response, the EPA set a deadline for the Plants to finish the
Closure. See 85 Fed. Reg. 53, 516 (August 23, 2020). Gavin Power, LLC
("Plaintiff') is one of the Plants and sought an extension of the deadline. See 87

Fed. Reg. 72989 (Nov. 28, 2022). The EPA denied that request (the "Gavin Order").
Id.
Later, Plaintiff and several other entities challenged various EPA actionsincluding the Gavin Order-before the D. C. Circuit. See Docket, Gavin Power, LLC

\/. EPA, D. C. Circuit Case No. 23-1038 ("Gaw'n /"). Among other things, Plaintiff
argues in Gavin /that the Gavin Order impermissibly created a new rule (the "Rule").
Pet. Opening Brief, Gavin I. Gavin I is still pending. See generally, Docket, Gavin I.
Meanwhile, Plaintiff filed the Complaint here ("Gavin //"). Compl., ECF No. 1. One
of Plaintiff's allegations here is that the EPA improperly applied the Rule to one of

Plaintiffs facilities in Ohio (the "Ohio Facility"). Id.
Defendants argue that the Court should stay this case pending the resolution
of Gavin 1. Mot, ECF No. 20.
II.

"[T]he power to stay proceedings is incidental to the power inherent in every
court to control the disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants. " Landis v. N. Am. Co., 299 U. S. 248,
254 (1936). "[T]he burden is on the party seeking the stay to show that there is
pressing need for delay, and that neither the other party nor the public will suffer
harm from entry of the order. " Ohio Env't Council v. U. S. Dist. Court, S. Dist. of

Ohio, E. Div., 565 F. 2d 393, 396 (6th Cir. 1977). When considering whether to grant
a stay, courts often evaluate the following factors:
(1) the need fora stay; (2) the stage of the litigation; (3) whether the nonmoving party will be unduly prejudiced or tactically disadvantaged;

(4) whether a stay will simplify the issues; and (5) whether the burden of
litigation will be reduced for both the parties and the court.
KirbyDev., LLC v. XPO Glob. Forwarding, Inc., No. 2:18-cv-500, 2018 WL 6075071,

at *2 (S. D. Ohio Nov. 20, 2018) (citing cases).

Case No. 2:24-cv-41

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All factors favor a stay here. First, consider whether a stay will simplify the
issues and reduce the burden of litigation. A ruling in Gavin I could be at least

partially dispositive here: if the D. C. Circuit agrees with Plaintiff that the Rule is
invalid as a whole, that would obviate any need for this Court to decide whether
Defendants properly applied the Rule to the Ohio Facility. In other words, the Court
would not need to determine whether Defendants erred in their factual findings in
support of applying the Rule to the Ohio Facility if, per Gavin I, Defendants should

not have applied the Rule at all. Thus, waiting for resolution of Gavin I may
significantly reduce the litigation needed here and simplify (or perhaps even
eliminate) the issues. See Burns v. Dodds, No. 2:19-CV-815, 2023 WL 2607538, at

*1 (S. D. Ohio Mar. 23, 2023) (finding a stay pending the resolution of an appeal
would "significantly simplify the issues and reduce the burden of litigation" where the
appeal could resolve a threshold legal question).
Next, the need for a stay favors granting Defendants' motion. If the Court
were to proceed with Gavin //while Gavin I is pending, this Court and the D. C.

Circuit could unintentionally issue conflicting rulings about the Rule's validity.
Further, as described above, the resolution of Gavin I could dispose of many of the
major issues in the case. Thus, the "need for a stay" factor favors a stay. See
Gudger v. CareCore Health LLC, No. 3:22-CV-239, 2023 WL 1431435, at *2 (S. D.
Ohio Feb. 1, 2023) ("The stay is necessary here to resolve the crux of Plaintiff's

pending motion for class certification under the correct standard. " (citation omitted)).
Next, the stage of the litigation also favors a stay. Gavin II is a new case:

Plaintiff filed the Complaint about four months ago, discovery is stayed, and the
Case No. 2:24-cv-41

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Court has not yet issued a preliminary pretrial scheduling order. See generally,
Docket. Cf. TERA II, LLC v. Rice Drilling D, LLC, No. 2:19-CV-2221, 2023 WL
3060249, at *3 (S. D. Ohio Apr. 21, 2023) (concluding this factor weighed "heavily
against a stay" where the case was four years old).

Finally, no party would be unduly prejudiced or tactically disadvantaged by a
stay. True, a "party has a right to a determination of its rights and liabilities without
undue delay. " Ohio Env't Council, 565 F.2d at 396. However, resolution of Gavin I
may be so dispositive that a stay could ultimately lead to a more efficient resolution
of this case. Further, the D. C. Circuit has already heard oral argument on Gavin I.

See March 7, 2024 docket entry, Gavin I. Thus, the stay will likely be relatively brief
and would not cause undue hardship to any party.
III.
For these reasons, the Case is STAYED pending the resolution of Gavin I.
The Clerk shall terminate all pending motions in this case.

The parties are ORDERED to file a joint report explaining the status of Gavin I
EVERY SIXTY DAYS.
IT IS SO ORDERED.

M^2^\
MfcftAEL H. WAtSlON, JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:24-cv-41

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