Challenges to Proposed Clean Power Plan Are Premature, D.C. Circuit Says in Dismissal

By Andrew Childers

June 9 — Federal appellate judges dismissed challenges to the Environmental Protection Agency's proposed carbon dioxide emissions limits for power plants June 9, saying they are premature, but one judge left open the possibility of similar lawsuits in the future.

The U.S. Court of Appeals for the District of Columbia Circuit in a June 9 opinion said it would not take the unprecedented step of blocking the EPA Clean Power Plan before the final rule has been issued. Instead, states and industry groups opposed to the rule may file their lawsuits after the final rule is released and may petition the court to stay implementation of the rule at that time.

“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,” Judge Brett Kavanaugh wrote in the majority opinion joined by Judge Thomas Griffith.

Judge Karen LeCraft Henderson wrote a separate concurring opinion that agreed a writ to block the EPA proposed Clean Power Plan is not warranted, but she took a broader view of the court's authority under the All Writs Act to review some federal agency proposals.

Murray Energy Corp. and several coal-dependent states had petitioned the court to issue an extraordinary writ that would block the EPA from promulgating the final Clean Power Plan. The company had argued the EPA is barred by the Clean Air Act from regulating carbon dioxide emissions from power plants under Section 111(d) of the act because they are already subject to hazardous air pollutant standards under Section 112. The D.C. Circuit never addressed that argument in its decision, instead finding that the lawsuit was premature because the EPA has not yet issued the final rule, which is expected in August.

“It’s the least-surprising decision of the year,” Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, told Bloomberg BNA June 9.

The court's decision cites a similar opinion issued in 2012 dismissing challenges to the EPA proposed carbon dioxide new source performance standards for new power plants.

Costs Don't Justify Review 

The court rejected states' and industries' arguments that they were incurring costs to prepare to comply with the upcoming EPA rule as sufficient justification to review the Clean Power Plan while still only a proposal.

“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,” the court said. “But that reality has never been a justification for allowing courts to review proposed agency rules.”

The EPA's proposed Clean Power Plan (RIN 2060-AR33) would set a unique carbon dioxide emissions rate for the power sector in each state. State regulators would develop their own plans on how best to achieve those emissions goals. The rule is currently at the White House Office of Management and Budget for review.

The judges heard arguments in the lawsuit April 16.

Additional Lawsuits Coming 

The court's decision only delays legal battles over the Clean Power Plan, which forms the centerpiece of President Barack Obama's plan to reduce U.S. greenhouse gas emissions heading into international climate negotiations in Paris later this year. Once the final rule is issued, it inevitably will be challenged in court.

“We stand by the arguments we made to the court, and believe that the litigation has further revealed the weakness of EPA’s arguments on the merits,” West Virginia Attorney General Patrick Morrisey, who led the states challenging the proposal, said in a June 9 statement.

Murray Energy also pledged to renew legal challenges once the EPA issues the final rule.

“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 in a statement.

Henderson Defends Authority 

Although Henderson agreed that a writ to block the Clean Power Plan is not justified given the final rule will be issued shortly, in her concurring opinion she defended the court's authority to use the All Writs Act to review proposed rules should the need arise.

Henderson said nothing in the Clean Air Act limits the court's jurisdiction to issue writs under the All Writs Act.

“Without an explicit command that jurisdiction under the All Writs Act had been withdrawn, we found it implausible that the court’s equitable powers had been restricted,” she said.

While defending the court's authority, Henderson said the challenges to the Clean Power Plan did not warrant exercising that authority given the final rule will be out soon.

“In sum, although we have the authority to issue a writ of prohibition, I would decline to do so because the passage of time has rendered the issuance all but academic,” she said.

Although Henderson said the All Writs Act is inapplicable to Clean Power Plan challenges, some attorneys said she has left the door open to similar challenges to proposals in the future.

“Good lawyers will still look at that as an invitation in appropriate circumstances to file petitions for extraordinary writs,” Thomas Lorenzen, a partner at Dorsey & Whitney LLP, told Bloomberg BNA.

To contact the reporter on this story: Andrew Childers in Washington at

To contact the editor responsible for this story: Larry Pearl at