Fight Over EPA’s Clean-Air Rule Premature


     (CN) – West Virginia and 13 other coal-producing states cannot challenge the Environmental Protection Agency’s proposed rule to limit carbon emissions from power plants until the rule becomes final, the D.C. Circuit ruled.
     “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,” Circuit Judge Brett Kavanaugh wrote for the three-judge panel. “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.” [Italics in original.]
     The D.C. Circuit declined Tuesday to jump into the fray at this junction.
     Fourteen coal-producing states, led by West Virginia, sought review of the EPA’s proposed rule to restrict carbon dioxide emissions from existing coal-fired and natural gas-fired power plants.
     The agency published the proposed rule, inviting public comment, and received over 2 million comments. It intends to issue a final rule this summer.
     In seeking to convince the court to review the proposed rule now, the states told the court that they are already incurring costs in preparing for the anticipated new rule, and therefore already suffering an injury.
     “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,” Kavanaugh wrote. [Parentheses in original.]
     In the alternative, the states said the court should at least rule on the EPA’s public statements about its legal authority to regulate carbon dioxide emissions from existing power plants, which the agency claims under Section 111(d) of the Clean Air Act.
     But the court declined to take action on mere statements. “EPA statements are not final agency action,” and do not give any indication of finality, according to the 12-page opinion.
     “Moreover, even if EPA’s position on its legal authority is set in stone, the agency’s statements about its legal authority – unconnected to any final rule or other final agency action – do not impose any legal obligations or prohibitions on petitioners,” Kavanaugh wrote for the panel. “Any such legal obligations or prohibitions will be established, and any legal consequences for violating those obligations or prohibitions will be imposed, only after EPA finalizes a rule.”
     EPA spokeswoman Liz Purchia said in a statement, “EPA is pleased that the court has denied the challenges to our proposed Clean Power Plan and confirmed our assessment that they are premature.”
     The Attorney General of West Virginia, Patrick Morrisey, told the New York Times he was disappointed in the court’s ruling, but will refile the suit as soon as the rule is final.

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