A federal appellate court Dec. 13 dismissed as premature
power industry challenges to the Environmental Protection Agency's proposed
carbon dioxide emissions limit for new fossil fuel-fired power plants (Las
Brisas Energy Center LLC v. EPA, D.C. Cir., No. 12-1248, 12/13/12).
EPA's proposed new source performance standard for carbon dioxide emissions
from fossil fuel-fired power plants is “not final agency action subject to
judicial review,” the U.S. Court of Appeals for the District of Columbia Circuit
said in a per curiam order granting EPA's motion to dismiss the case.
The new source performance standard proposed April 13 under Section 111 of
the Clean Air Act would limit new fossil fuel-fired power plants to 1,000 pounds
of carbon dioxide emissions per megawatt-hour. The proposal would not apply to
existing or modified sources (77 Fed. Reg. 22,392; 43 ER 1008, 4/20/12).
Several power companies sued EPA to block the rule, arguing the proposal
constitutes final agency action because it set an April 13 deadline by which new
facilities must break ground or be subject to the proposed carbon dioxide
The three judges issuing the Dec. 13 order were Judith W. Rogers, Merrick B.
Garland, and Janice Rogers Brown. The power companies have the option of
requesting a rehearing before the same judges or requesting a new hearing before
the entire D.C. Circuit.
Eric Groten, a partner at Vinson & Elkins LLP representing White Stallion
Energy Center LLC, and Jeffrey Holmstead, a partner at Bracewell & Giuliani
LLP representing Tri-State Generation and Transmission Association Inc., both
told BNA the power companies have made no decision on how to proceed next. EPA
must finalize the performance standard by April 2013. The power companies could
simply wait until then to challenge the final rule, they said.
“It wouldn't surprise me if they decided to wait until the final rule,”
Environmental groups that had intervened on behalf of EPA praised the D.C.
Circuit's decision to dismiss the lawsuits.
“This is such a clear-cut area of law,” Joanne Spalding, a managing attorney
at the Sierra Club, told BNA. “The court doesn't have jurisdiction to hear
challenges to proposed rules, only final action.”
David Doniger, policy director of the Natural Resources Defense Council's
Climate Center, called the power companies' lawsuit “just silly.”
“This is a whacky lawsuit brought by lawyers who should know better,” he told
Both new source performance standards issued under Section 111 of the Clean
Air Act and the maximum achievable control technology standards issued under
Section 112 of the act require all new industrial facilities that start
construction after the date the rule is proposed to comply with the emissions
standards when they are finalized. Allowing petitioners to challenge the
standards at the proposed rule stage would tie up EPA indefinitely, Spalding
“It would be endless,” she said. “EPA could never finalize anything because
it could never start anything.”
By Andrew Childers
The order granting EPA's motion to dismiss Las Brisas Energy Center LLC v.
EPA is available at http://op.bna.com/env.nsf/r?Open=fwhe-92xr5k.