Federal Court Strikes Challenge to Proposed EPA Carbon Rule as Premature

The D.C. Circuit rejected challenges to the Environmental Protection Agency’s (EPA’s) proposed carbon rules for existing power plants, ruling that it has no authority to review rules that aren’t yet final. 

“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,” wrote Circuit Judge Brett Kavanaugh in the court’s opinion.

“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,” he explained.

Petitioners challenging the proposed rule include coal firm Murray Energy Corp. and 12 states: West Virginia, Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and Wyoming.

The parties filed suit soon after the EPA issued its proposed rule, contesting the EPA’s authority to curb carbon emissions from power plants under Section 111(d) of the Clean Air Act.

The petitioners argued that the federal court should consider their challenge of the proposed rule because they are already incurring costs in preparation for the anticipated finalized rule. “But courts have never reviewed proposed rules, notwithstanding the costs that parties may routinely incur in preparing for anticipated final rules,” wrote Judge Kavanaugh

“We recognize that prudent organizations and individuals may alter their behavior (and thereby incur costs) based on what they think is likely to come in the form of new regulations. But that reality has never been a justification for allowing courts to review proposed agency rules. We see no persuasive reason to blaze a new trail here.”

EPA spokesperson Liz Purchia told POWER that the agency is pleased the court has denied challenges to the proposed rule and effectively “confirmed our assessment that they are premature.”

Purchia said that the Clean Power Plan is built on a “time-tested state-federal partnership” established by Congress when the Clean Air Act was enacted nearly four decades ago. The Clean Air Act gives states important flexibility to design plans that meet their individual and unique needs, she said.

“EPA addressed the legal foundation for our actions when we issued the proposed rule in June and we will address all comments we’ve received on this issue in the final Clean Power Plan. We appreciate the high level of interest in taking action on climate change demonstrated by the millions of comments received.”

The EPA is on track to finalize a “common-sense, affordable Clean Power Plan” by mid-summer, she said.

Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)