As previously reported in the Summer 2014, Fall 2014, and Spring 2015 issues of The Climate Report, Murray Energy and a group of states challenged EPA's legal authority to promulgate the Clean Power Plan, arguing that EPA is precluded from regulating existing coal-fired power plants under Clean Air Act § 111(d). In re: Murray Energy Corp., No. 14-1112; State of West Virginia v. EPA, No. 14-1146. On June 9, 2015, a panel of the United States Court of Appeals for the District of Columbia Circuit dismissed those challenges, holding that that they were premature and that any challenge would have to wait until EPA promulgated its final agency rule.
The panel concluded that EPA's proposed Clean Power Plan
rule did not constitute "final agency action" subject to
review by the D.C. Circuit. Writing for the panel, Judge Kavanaugh
noted that proposed rules are not entitled to challenge because
"[t]hey are not the 'consummation of the agency's
decisionmaking process' and ... they do not determine
'rights or obligations,' or impose 'legal
consequences.'"
In dismissing the petitioners' challenges, the D.C. Circuit
rejected all three of the petitioners' arguments in favor of
review of the proposed agency rule. The panel, first, rebuffed the
petitioners' assertion that the All Writs Act, 28 U.S.C. §
1651(a), authorized the court to address the proposed rule. The
court explained that a writ of prohibition was not necessary or
appropriate to aid the court's jurisdiction because after EPA
issues its final rule, parties with standing will be able to
challenge the rule. The court also rejected the petitioners'
contention that incurring costs in preparation for the anticipated
final rule should allow the court to consider the challenge,
reasoning that an organization altering its behavior based on what
it thinks is likely to come in the form of new regulations has
never been a justification for allowing courts to review proposed
agency rules.
The court similarly rejected the petitioners' argument that
EPA's public statements regarding its legal authority to
regulate greenhouse gas emissions constituted final
agency action. The court observed that an agency's public
statements about its legal authority to adopt a proposed rule is
not the consummation of the agency's decision-making process.
Furthermore, EPA's statements regarding its legal authority did
not impose any legal obligations or prohibitions on the petitioners
because any such legal obligations or prohibitions would be imposed
only after EPA finalized the Clean Power Plan.
Lastly, the court rejected the petitioners' effort to challenge
a 2011 settlement agreement between EPA and several states and
environmental groups. According to the panel, the settlement did
not obligate EPA to issue a final rule restricting carbon dioxide emissions from power plants but
simply set a timeline for EPA to decide whether to promulgate such
rules. By setting a timeline for agency action, without dictating
the content of that action, the settlement did not impose an injury
on the petitioners.
Judge Henderson authored a concurring opinion in which she agreed
that the petitioners' challenge should be dismissed but wrote
separately to note that, contrary to the panel's opinion, the
court had jurisdiction to issue a writ of prohibition pursuant to
the All Writs Act but should decline to do so because "the
passage of time has rendered the issuance all but
academic."
On July 24, 2015, the petitioners moved for panel rehearing or
rehearing en banc, arguing that the D.C. Circuit's decision
violated circuit and U.S. Supreme Court precedent. The petitioners,
alternatively, requested that the court stay the mandate until the
final Power Plan rule is published in the Federal Register.
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