A federal appeals court today dismissed an attempt by more than a dozen states, energy companies and industry groups to block U.S. EPA from finalizing its landmark greenhouse gas standards for power plants.
The U.S. Court of Appeals for the District of Columbia Circuit ruling hinged on procedural grounds, holding that the court would not rule on the legality of the standards before they were finalized.
In his majority opinion for the three-judge panel, Judge Brett Kavanaugh said the challengers, led by West Virginia and Ohio-based Murray Energy Corp., asked the court to take unprecedented action.
"They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule," wrote Kavanaugh, a Republican appointee. "But the proposed rule is just a proposal."
EPA’s Clean Power Plan is a critical component of President Obama’s efforts to address climate change. Due to be promulgated this summer, the proposal would cut heat-trapping emissions from existing power plants by 30 percent from 2005 levels by 2030. The rules would shift the country from coal-based power to energy from renewable sources and natural gas.
Arguing that the rule will have a significant economic impact and questioning whether EPA has the authority under the Clean Air Act to issue it, the challengers asked the D.C. Circuit to issue an "extraordinary writ" to halt the regulations.
Kavanaugh addressed the challengers’ contentions for why the court should act and found that "none is persuasive."
"We may review final agency rules," Kavanaugh wrote, citing court precedents. "But we do not have authority to review proposed rules."
EPA in a statement said it is "pleased" with the decision and underscored that the standards will be legally sound.
"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," the agency said. "EPA is on track to issue a common-sense, affordable Clean Power Plan this summer that is based on the input we’ve received and will move the nation significantly forward in addressing climate change and protecting public health."
The case grabbed significant attention before it was argued in a standing-room-only courtroom in April. Harvard Law professor Laurence Tribe, a former mentor to Obama, added celebrity to the case, representing Peabody Energy Corp. and contending that the rules violate the Constitution.
An open question is whether EPA has the authority to issue the far-reaching rules. Of particular concern is the so-called legislative "glitch" issue. There are two versions of the Clean Air Act section EPA is relying on, 111(d), that were enacted into law — one from the House and one from the Senate. Under the challengers’ reading, the House version prohibits EPA from issuing regulations for sources of pollution already regulated under the law.
Because EPA has already issued standards for other pollutants for power plants, that theory would foreclose the new rule.
EPA and environmentalists counter that the Senate version only prohibits redundant regulation of specific pollutants, which would allow the greenhouse gas standards to stand. They further suggest that the agency deserves deference in reconciling the two seemingly conflicting versions, and that the challengers’ reading of the House version is incorrect because it would weaken EPA’s authority when Congress intended to strengthen it.
The case was closely watched to see whether the court would grapple with that issue and provide any hints on how it would view inevitable challenges to the rule when it is finalized.
The ruling, however, at less than 20 pages, avoided them, opting instead to dismiss the case on procedural grounds. Further, the decision is not surprising given the panel’s stiff questioning of the challengers at oral arguments (Greenwire, April 16).
Kavanaugh was joined in the opinion by Judge Thomas Griffith, another Republican appointee. The panel’s third judge, Karen Henderson, also a Republican appointee, concurred in the judgment but wrote separately on when extraordinary writs may be issued.
Thomas Lorenzen, a former Justice Department environmental attorney now at Dorsey & Whitney, said the court’s silence on the most contentious issues was no accident.
"The judges were very careful not to say a word about the merits, declining even to describe what the merits argument is," Lorenzen said. "I believe this is quite intentional. Judges Kavanaugh and Griffith firmly believe that, absent final agency action, the court lacks jurisdiction to entertain the merits, and they accordingly would want to avoid giving any hint in their opinion as to how those merits arguments might ultimately be resolved."
Murray Energy and West Virginia, in statements, said they look forward to challenging the rule when it is finalized.
"While we were disappointed by the Court’s decision, we will fully litigate the rule once it is formally finalized by the Obama EPA and we will prevail," the company said.
West Virginia Attorney General Patrick Morrisey (R) echoed that sentiment, calling the ruling "narrow."
"As the court recognized, the rule will be final very soon, and we look forward to continuing to press the issue," he said in a statement.
The National Mining Association was more emphatic.
"All EPA got was a temporary reprieve," spokesman Luke Popovich said. "And hopefully only a stay of execution."
Environmentalists praised the ruling.
"Today’s decision by the U.S. Court of Appeals," said Vickie Patton, the Environmental Defense Fund’s general counsel, who intervened in the case on EPA’s behalf, "is both a big win in protecting our communities and families against the massive carbon pollution from power plants, and an important victory for a fair and democratic rulemaking process."
Click here for the opinion.
Reporter Manuel Quiñones contributed.