Federal Court Finds Challenges to Clean Power Plan Premature

Legal challenges to the U.S. Environmental Protection Agency’s (EPA) proposed Clean Power Plan, which would limit carbon dioxide emissions from existing power plants under the Clean Air Act, came too early, according to a panel of federal judges.

“Petitioners are champing at the bit to challenge EPA’s anticipated rule restricting carbon dioxide emissions from existing power plants,” wrote Circuit Judge Brett Kavanaugh in the court opinion from the U.S. Court of Appeals for the District of Columbia Circuit. “But EPA has not yet issued a final rule. It has issued only a proposed rule. Petitioners nonetheless ask the court to jump into the fray now. They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule. But a proposed rule is just a proposal. In justiciable cases, this court has authority to review the legality of final agency rules.”

The lawsuit from a group of states and Ohio-based Murray Energy Corp, claimed that the EPA exceeded its authority when it proposed the rule last year. Even though the rule isn’t slated to be final until August, the plaintiffs indicated they were facing steep costs to prepare for it.

The proposed rule sets state-specific emissions targets—interim state-level emissions rate goals (2020–2030) and a final 2030 emissions rate limit—in order to cut heat-trapping emissions from existing power plants 30 percent from 2005 levels by 2030.

“We are obviously disappointed with the court’s ruling today, but we still think we have a compelling case that the rule is unlawful,” said West Virginia Attorney General Patrick Morrisey, who led the states’ challenge to the pending rule. “As the court recognized, the rule will be final very soon, and we look forward to continuing to press the issue.”

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