Abby L. Harvey
GHG Monitor
7/10/2015
Oklahoma Attorney General Scott Pruitt (R) filed a lawsuit late last week calling for injunctive relief from the Environmental Protection Agency’s proposed carbon emissions standard for existing coal-fired power plants. The proposed regulation, dubbed the Clean Power Plan, requires states to develop action plans to meet federally set carbon emissions goals. Pruitt argues that the EPA does not have the authority to propose the rule and also that the “best system of emissions reduction,” in the rule commandeers states’ electric systems. Pruitt further claims that because of the scoop of the regulation, states will be forced to take potentially costly actions prior to the rule’s implementation. “By ‘proposing’ that states will be required to fundamentally restructure the generation, transmission, and regulation of electricity, and do so at a breakneck pace, Defendants have left states no choice but to begin carrying out EPA’s commands at this time, well before any court has an opportunity to review their ‘final’ rule,” according to the suit.
Pruitt may run into trouble getting his case heard, however, as the rule is not yet finalized. A similar case was thrown out of the D.C. Circuit Court last month on the basis that the suit was premature. “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.
Pruitt argues in his suit that the regular course of action for challenging a Clean Air Act regulation is not adequate in this case. Once a rule is finalized, opponents can challenge it in the D.C. Circuit Court through a petition for review under Section 307 of the Clean Air Act. This would take at minimum nine months, Pruitt argues, and during that time the state of Oklahoma will have to make significant investments toward implemented the rule, even if the rule ends up being invalidated. “The ordinary petition process under Section 307 is not an adequate means of obtaining the relief required if Oklahoma is to maintain its power sector in anything like the form it exists today and if it is to forgo the massive expenditure of resources required to accommodate the EPA Power Plan. The EPA Power Plan will result in the complete restructuring of Oklahoma’s power sector even though it has no chance of surviving eventual judicial scrutiny,” according to the suit.
