In a much-watched case, on June 9, 2015, the D.C. Circuit Court of Appeals issued an opinion denying the petition of Murray Energy for an extraordinary writ that would have stopped the EPA from promulgating its Carbon Pollution Standards.  Murray Energy had based its petition on two sections of the Clean Air Act, Sections 111(d) and Section 112. They argued that EPA was prohibited from regulating greenhouse gas pollution from power plants under Section 111(d) because the EPA was already regulating other kinds of pollutants from those plants under Section 112.  Because the rule is still a proposal, the Court held, as many expected, that the action was premature.  The Administrative Procedure Act and the Clean Air Act prohibit judicial challenges until a rulemaking is final.  EPA had argued that it could change the basis for the rulemaking based on comments received and that the Court should not pre-judge the issue.  The Court agreed that no grounds existed to “circumvent bedrock finality principles.”

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. But that reality has never been a justification for allowing courts to review proposed agency rules. We see no persuasive reason to blaze a new trail here.

Opinion at p. 9.

The Court further rejected petitioners’ arguments that EPA’s legal authority to issue the rule should be decided now, saying that mere statements about its authority could change after the agency had reviewed and responded to public comments on the rule.

In a concurrence, Judge Henderson “distances” herself from the opinion of the majority about “all writs” powers.  In her opinion, because “this Court ‘would have authority to review the agency’s final decision,’ we have authority to issue a writ of prohibition in the interim.”  But, she indicates, the writ would be inappropriate here because EPA is intending to issue the final rule shortly and the same issues will be raised and adjudicated.  Opinion at p 18.

The case is seen as the first of many challenging EPA’s Clean Power Plan (CPP), a set of rules requiring the electric power industry to reduce greenhouse gas emissions.  Because the rule will result in significant change to the generation, delivery and use of energy, the controversial action has been the focus of technical, economic, and legal analyses and political wrangling since the CPP was proposed in June 2014.  The actions contemplated by the CPP are billed as “flexible” by EPA but, in practice, purport to impact states in vastly different ways.  Additionally, the CPP is seen as EPA forcing states to make decisions that EPA itself recognizes that it does not have the power to order.

The EPA has indicated that it will issue final rules this summer in the combined suite of three Carbon Pollution Standards governing electric power generation.  The same arguments made in the Murray Energy petition, as the D.C. Circuit explicitly recognizes, will undoubtedly be raised again when the rules become effective.