A federal appeals court tossed out a lawsuit brought by about a dozen states and a coal company against the EPA’s upcoming carbon dioxide regulations for coal-fired power plants.
A panel of three federal judges rules it was too early to make a ruling on the legality of the EPA’s so-called “Clean Power Plan” — a massive regulatory plan to limit carbon dioxide emissions from existing power plants.
“They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule,” Judge Brett Kavanaugh wrote in the court’s opinion. “But a proposed rule is just a proposal.
“In justiciable cases, this Court has authority to review the legality of final agency rules. We do not have authority to review proposed agency rules,” Kavanaugh wrote.
Last year, a group of about a dozen states led by West Virginia sued the Obama administration over the EPA’s proposed Clean Power Plan. The state’s argued the EPA’s new rule violated the Clean Air Act and infringed on states’ rights to set their own environmental standards. The states’ lawsuit was merged with a lawsuit by the coal company Murray Energy.
“When we filed this case last summer, we knew there would be procedural challenges, but given the clearly illegal nature of the rule and the real harm occurring in West Virginia and throughout the country, we believed it was necessary to take all available action to stop this rule as soon as possible,” West Virginia Attorney General Patrick Morrisey said in a statement.
“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,” Morrisey added.
Republican lawmakers were also disappointed with the ruling, but noted it was only a temporary setback. When the rule is finalized, opponents can sue the EPA over the rule.
“I have no doubt that once the proposal is finalized and the Courts can get to the merits of the case, it will be overturned,” said Oklahoma Sen. Jim Inhofe, chairman of the Senate Environment & Public Works Committee.
“We do not live in a country where an agency of unelected bureaucrats gets to decide what the law is, even under President Obama,” Inhofe said.
The EPA said the court’s ruling vindicated their argument that the proposed rule could not be challenged. The agency’s environmentalist allies vowed to continue to defend the rule when it’s inevitably challenged after it’s finalized this summer.
“EPA is pleased that the court has denied the challenges to our proposed clean power plan and confirmed our assessment that they are premature,” an EPA spokeswoman told The Wall Street Journal.
The EPA is set to unveil the finalized version of the Clean Power Plan this summer, just months ahead of a major United Nations climate summit in Paris. President Obama hopes such regulations will convince other countries to do more to fight global warming.
Obama’s climate agenda, however, has come under increased scrutiny in recent months as the legal argument against the Clean Power Plan garners unexpected allies.
Earlier this year, Republican Gov. Scott Walker joined the lawsuit against the EPA’s rule. Walker, who is running for president, argued the Clean Power Plan “could have a devastating impact on Wisconsin because we are so heavily dependent on manufacturing.”
Another surprise ally in the case against the EPA is Obama’s former mentor and law professor Laurence Tribe of Harvard University.
“EPA possesses only the authority granted to it by Congress,” Tribe told lawmakers in a March hearing. “Its gambit here raises serious questions under the separation of powers… because EPA is attempting to exercise lawmaking power that belongs to Congress and judicial power that belongs to the federal courts.”
“Burning the Constitution should not become part of our national energy policy,” Tribe added.
Obama’s climate agenda will also see another challenge from Murray Energy as the company still contends the rules violate federal law.
“While we were disappointed by the court’s decision, we will fully litigate the rule once it is formally finalized by the Obama EPA and we will prevail,” the company told The WSJ.
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