Abby L. Harvey
GHG Monitor
4/17/2015
At least two of the three judges hearing a trio of cases calling for the overturn of the Environmental Protection Agency’s proposed carbon emissions standards for existing coal-fired power plants seemed to support the defendants’ position that the cases were premature as the rule has yet to be finalized, according to a panel of lawyers speaking during an Environmental Defense Council teleconference this week. The panel stated that because the rule is not yet final, administrative law judges would generally find that it cannot yet be challenged and that the argument brought forward in the cases is premature. “Two of the judges, Judges [Thomas] Griffith and [Brett] Kavanaugh, expressed repeated concern about the implications of the argument the petitioners were making and I think they understood this case would be a garden variety challenge to a proposed rule and understood that under well-established principals of administrative law those challenges cannot be brought, cannot prevail and that allowing them to be brought would create enormous dislocations of the administrative state,” said Richard Revesz, Lawrence King Professor of Law and Dean Emeritus of the New York University School of Law, during the call.
The lawsuits, brought against the EPA by Murray Energy, a coalition of serval other energy companies and 15 states, argue that the EPA has acted beyond its authority in issuing the proposed rule. The rule would set federally determined emissions reduction targets for each state and requires the states to develop action plans to meet those targets. The basis of the petitioners’ claim hinges on the idea that the EPA misinterpreted the section of the Clean Air Act under which the proposed rule was established. The petitioners claim that while that section of the Clean Air Act, 111(d), grants EPA authority to require states to regulate existing-source emissions, it excludes the regulation of air pollutants emitted from a source that is already regulated under Section 112. Coal-fired power plants are already regulated under Section 112 of the Clean Air Act. The EPA has argued that an error in the amendments to the Clean Air Act has created an ambiguity, allowing the agency to develop the regulations.
Challenges Should Wait Until Rule in Finalized, Lawyers Say
During this week’s teleconference, the panel of lawyers said that any challenge against the EPA’s proposed rule should wait until it is finalized. “That is the appropriate course for this to take, of course, because once the rule is final that’s the appropriate time for these challenges to occur and we do anticipate that these same petitioners will be back,” Joanne Spalding, Chief Climate Counsel for the Sierra Club, which is a party to the case, said during the call.
Murray Energy has argued that it is within the court’s jurisdiction to stop the agency under the All Writs Act, which states that a court "may issue all writs necessary or appropriate in aid of [its] jurisdiction[] and agreeable to the usages and principles of law." This entry, Murray and their interveners have argued, means that that court may “prohibit an agency from taking an action beyond its power – an ultra vires action – even before that action is final,” the group writes in a petition for extraordinary writ.
It remains unclear when a decision will be made in the case, Sean Donahue, Counsel for the Environmental Defense Fund, who argued the case during this week’s oral arguments in federal court, said during the call. “We really have no idea. This is a very unusual kind of case. Normally opinions come out a month to four months maybe, but in this case which is different and there are serious questions about its basic premature-ness those normal benchmarks probably aren’t that reliable,” Donahue said.
Rematch Likely if EPA Wins Case
If the case is decided in EPA’s favor, it is likely that the underlying arguments will be heard again following the finalization of the rule. “This summer the administration will promulgate the final rule. Once the final rule gets promulgated the challenge will be inevitable,” Revesz said. “This cast of characters will return at some point to the D.C. Circuit to make to some extent the same set of arguments that were made today, except the argument that it was premature to hear this case, because at that point it won’t be premature but many of the same substantive arguments plus a whole slew of other arguments. I think we’re going to expect a full review of all the issues around whatever the final rule looks like in the D.C. circuit sometime in 2015-2016.”
How the court might decide that future case, Donahue said, is uncertain as of yet. “I don’t think much that we heard today would shed of a lot of light on how the court might ultimately view a final rule,” he said.
