Abby L. Harvey
GHG Monitor
6/12/2015
DC Circuit Court judges this week found that lawsuits brought against the Environmental Protection Agency concerning its proposed carbon emissions standards for existing coal-fired power plants were premature as the rule has yet to be finalized. The rule in question would set federally determined emissions reduction targets for each state and requires the states to develop action plans to meet those targets. “Petitioners are champing at the bit to challenge EPA’s anticipated rule restricting carbon dioxide emissions from existing power plants. But EPA has not yet issued a final rule. It has issued only a proposed rule. Petitioners nonetheless ask the Court to jump into the fray now. They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule. But a proposed rule is just a proposal. In justiciable cases, this Court has authority to review the legality of final agency rules. We do not have authority to review proposed agency rules,” Judge Brett Kavanaugh wrote in the decision.
Oral arguments concerning the suits, brought against the EPA by Murray Energy, a coalition of serval other energy companies and 15 states, were heard in April. The lawsuits argued that the EPA has acted beyond its authority in issuing the proposed rule. The basis of the petitioners’ claim hinged on the idea that the EPA misinterpreted the section of the Clean Air Act under which the proposed rule was established. The petitioners claimed that while that section of the Clean Air Act, 111(d), grants EPA authority to require states to regulate existing-source emissions, it excludes the regulation of air pollutants emitted from a source that is already regulated under Section 112. Coal-fired power plants are already regulated under Section 112 of the Clean Air Act. The EPA has argued that an error in the amendments to the Clean Air Act has created an ambiguity, allowing the agency to develop the regulations.
Murray Energy Claimed Court Had Jurisdiction to Block Proposal
Murray Energy has argued that it is within the court’s jurisdiction to stop the agency under the All Writs Act, which states that a court "may issue all writs necessary or appropriate in aid of [its] jurisdiction[] and agreeable to the usages and principles of law." This entry, Murray and their interveners have argued, means that that court may “prohibit an agency from taking an action beyond its power – an ultra vires action – even before that action is final,” the group wrote in a petition for extraordinary writ.
This argument did not persuade the judges, however. “In this case, a writ is not necessary or appropriate to aid the Court’s jurisdiction. After EPA issues a final rule, parties with standing will be able to challenge that rule in a preenforcement suit, as well as to seek a stay of the rule pending judicial review. At that time (which will not be very long from now, according to EPA), the Court will have an opportunity to review the legality of the rule,” the decision says. “In short, the All Writs Act does not authorize a court to circumvent bedrock finality principles in order to review proposed agency rules.” The proposed rule is expected to be finalized in August.
