December 5, 2021

Volume XI, Number 339

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December 03, 2021

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D.C. Circuit Rejects Preliminary Challenge to Clean Power Plan

Consistent with longstanding administrative-law precedents, the D.C. Circuit has rejected two challenges to EPA’s proposed Clean Power Plan rule as premature. The two closely-watched cases, In re Murray Energy Corporation and West Virginia v. EPA, were decided together in a short opinion by Judge Kavanaugh issued on June 9, 2015. The petitioners in the two cases, two coal companies and a group of twelve states, argued that the court should vacate the proposed rule because EPA has no authority to regulate carbon dioxide under Section 111(d) of the Clean Air Act. The court did not reach the merits of this argument, and instead rejected the lawsuit as 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. In short, we deny the petitions for review and the petition for a writ of prohibition because the complained-of agency action is not final.

The petitioners had argued that review was permissible at such an early stage under several theories, including the All Writs Act, 28 U.S.C. § 1651, but the majority found these argument implausible. Judge Kavanaugh explained that the All Writs Act “does not authorize a court to circumvent bedrock finality principles,” and that the Act does not allow courts to issue writs “whenever compliance with statutory procedures appears inconvenient or less appropriate.” Here, the Clean Air Act authorizes suits only after a final agency action, which in this case would be the issuance of a final rule. The petitioners also sought to construe EPA’s public statements regarding its authority to regulate carbon dioxide as a final agency action that is ripe for review, but the court rejected that argument as well on the grounds that public statements do not create any “legal obligations or prohibitions” and are thus not final agency actions.

This decision is not unexpected, and the challenge here met a similar fate as the 2012 lawsuit seeking to overturn EPA’s proposed rule for new source performance standards for carbon dioxide emissions at existing power plants. Despite this early defeat for those seeking to challenge EPA’s authority to regulate greenhouse gasses, states and industry groups are likely to advance similar arguments after EPA issues a final rule later this summer.

©2021 All Rights Reserved. Lewis Roca Rothgerber LLPNational Law Review, Volume V, Number 160
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About this Author

Dietrich Hoefner, Energy Attorney, Lewis Roca Law Firm
Associate

Mr. Hoefner is an associate in the firm’s Government and Regulatory Affairs practice group. His practice is focused on environmental and natural resources law, representing clients in the energy and utilities sectors.

Mr. Hoefner’s experience includes public utilities law and policy, environmental and natural resources law, and litigation. He has worked with public utility companies, natural resource industries, and local and national environmental groups on various energy and environmental legal matters.

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