Trade Associations Argue EPA Proposed Carbon Rule Is Ripe for Judicial Review

By Rebecca Wilhelm

Dec. 29 — The Environmental Protection Agency’s decision to regulate carbon dioxide emissions from existing power plants under Section 111(d) of the Clean Air Act is a final agency action subject to judicial review, two trade associations argue in an amicus brief supporting Murray Energy Corp.’s effort to block the proposed regulation in federal appellate court.

The National Mining Association and the American Coalition for Clean Coal Electricity disputed the EPA’s argument that the rule is a proposal that can't yet be subjected to legal challenges.

“EPA’s contention that it has an open mind on the basic question of its authority to issue Section 111(d) regulations and that it therefore may not issue a final Section 111(d) rule at all is absurd,” the trade associations said in a Dec. 23 brief filed in the U.S. Court of Appeals for the District of Columbia Circuit. “The Agency has not only made a final decision to regulate, it has made that regulation its highest priority.”

Two dozen states intervening in the case also submitted briefs. The states intervening on behalf of industry argue that the EPA already conceded the proposed standards violate the Clean Air Act, and they are urging the court to issue an extraordinary writ to prevent the agency from finalizing the rule. However, the states intervening on EPA's behalf argue that the court won't have jurisdiction to review the rule until it has been completed.

In June, Murray Energy filed a lawsuit asking the D.C. Circuit to issue an extraordinary writ to prevent the agency from finalizing the proposed carbon dioxide standards. In August, the coal company filed a second lawsuit in the D.C. Circuit arguing that the standards are illegal because power plants already are subject to hazardous air pollutants limits under Section 112 of the Clean Air Act.

The EPA in June released a proposed rule that would require the existing fleet of fossil fuel-fired power plants to reduce emissions of carbon dioxide by 30 percent from 2005 levels by 2030 as part of the first greenhouse gas emissions standards for existing power plants.

Final Agency Action 

The EPA and the intervenors on its behalf have argued that the proposed emissions standards don't constitute a final agency action.

“It is firmly established that this court does not have jurisdiction to entertain a challenge to a proposed rule or ongoing rulemaking,” the EPA said in a Nov. 3 brief filed in the D.C. Circuit. “Rather, once EPA takes final action on the rulemaking, petitioner may then bring a challenge before the Court.”

However, the trade associations point to several factors indicating that the EPA has made a final decision to issue Section 111(d) regulations.

For example, they argue that President Barack Obama has instructed the agency to issue the regulations. Moreover, the fact that the EPA “has devoted unprecedented resources to the rulemaking effort” makes it “scarcely believable that the Agency's lawyers are seriously representing to this Court that, in the end, the Agency will say the equivalent of ‘never mind.' ”

The states intervening on industry's behalf argue in a Dec. 22 brief that the EPA acknowledged its proposed rule violates the plain text of the Clean Air Act, and an extraordinary writ blocking further agency action is warranted. Section 111(d) specifically “grants EPA certain authority to require States to regulate existing-source emissions, but it specifically excludes the regulation of any air pollutant emitted from a source category that EPA already regulates under Section 112 of the Act,” the intervenors said in their brief.

The industry intervenors are Alabama, Alaska, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Dakota, West Virginia and Wyoming.

States Intervene on EPA's Behalf 

A Dec. 23 brief submitted by states intervening on the agency's behalf argues the proposed carbon dioxides standards don't constitute a final agency action ripe for judicial review.

They argue Murray Energy must pursue its complaint through the statutorily prescribed rulemaking process, which forecloses judicial review until the agency issues a final rule. They also argue that the coal company hasn't presented any uniquely compelling circumstances that would justify the extraordinary relief it seeks.

The agency intervenors are California, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, the District of Columbia and the City of New York.

Other Amicus Brief Filed 

Nine other trade associations also filed an amicus brief Dec. 22 in support of Murray Energy. The crux of their argument is the EPA doesn't have the authority to issue the proposed carbon dioxide standards because Section 111(d)(1) unambiguously forbids the agency from regulating the same source category under both Section 111(d) and Section 112.

“Prohibiting double-regulation of existing power plants makes sense,” the associations said in the brief. “An additional set of regulations under Section 111(d) would make operating power plants much more expensive. This increased cost would be difficult for existing power plants to bear, both because of their limited future life expectancy and the high cost of retrofitting already-constructed plants to comply with mandates created after they were designed.”

To contact the reporter on this story: Rebecca Wilhelm in Washington at

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

The amicus brief by the National Mining Association and the American Coalition for Clean Coal Electricity on behalf of Murray Energy is available at

The amicus brief by nine trade associations on behalf of Murray Energy is available at

The brief submitted by 12 states intervening on behalf of Murray Energy Corp. is available at

The brief submitted by 12 states and two cities intervening on behalf of the EPA is available at