Court Rejects Challenge to Power Plant Emissions Standards

Challenges to the Environmental Protection Agency’s proposed regulations to reduce greenhouse gas emissions will have to wait until a final rule is released.

That’s according to a federal appeals court that rejected on procedural grounds an early challenge to the EPA’s proposed regulations to establish new greenhouse gas standards for existing power plants. The lawsuit, filed by 14 states and some of the nation’s largest coal companies, was the first in a wave of anticipated challenges to the EPA climate change rules. Legal experts say they expect some of those challenges to make it to the Supreme Court.

The EPA is in the process of promulgating a rule that would limit the amount of carbon dioxide existing power plants may emit. The proposal, issued under the Clean Air Act last June, aims to cut carbon pollution from existing power plants by 30 percent from 2005 levels by 2030. The regulations are an integral part of the Obama administration’s efforts to reduce the emissions of greenhouse gases, thought by many researchers to be the main contributor to climate change.

The three-judge panel rejected the challenge, ruling that it does not have the authority to review a rule before it is finalized. Writing for the court, Judge Brett Kavanaugh said, “They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule. We may review final agency rules, but we do not have authority to review proposed rules.”

The draft rule would establish a different target emissions rate for each state, with required reductions ranging from a low of 11 percent in North Dakota to a high of 72 percent in Washington. The target rates are based on estimates about how much each state could reduce emissions by using four carbon-reducing measures, or building blocks, which the EPA identified as the "best system of emission reduction" under Section 111(d) of the Clean Air Act.

Under the proposed rule, each state would have to achieve its target emissions rate by 2030 and also would have to comply with interim goals to demonstrate progress. The rule is likely to be finalized in August, at which time the EPA also will propose a draft federal implementation plan for states that do not comply as well as a separate final rule with standards for new power plants.

The draft rules would significantly reduce the amount of coal used in electricity production, since coal emits a greater amount of carbon dioxide when burned than alternative fuels. Arguing that the rule would have a significant economic impact to the coal industry and to coal-producing states and questioning the EPA’s authority to issue the proposed regulations, the challengers asked the District of Columbia Circuit to issue an “extraordinary writ” to halt the regulations.

The ruling only addressed the timing of the petitioner’s lawsuit, avoiding arguments about the rule’s legality. Legal experts had been closely watching the case to see whether or not the court would provide indications on how future challenges might be viewed once the rule is finalized.

Litigants already are preparing to file a new suit once the rule goes into effect.

“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.

The opinion can be found here.