by Chaim Mandelbaum
FME Law Counsel
From the moment the whispers of EPA’s new Carbon Pollution Standards were heard, a legal challenge was apparent. As EPA heads toward zero hour, when it will finalize the Clean Power Plan, the agency has managed to only delay the first legal challenge. A three Judge panel of the DC Circuit Court found there was no jurisdiction to hear a petition of review and prohibition regarding the rules because the rules have not yet been finalized.
Challengers to the EPA’s new proposed rules included energy companies, trade associations, and more than a dozen states. They asked the Court to review the legality of the EPA regulating carbon emissions under Section 111(d) of the Clean Air Act. The parties argued that existing regulation under Section 112 of the Clean Air Act preclude the new regulations.
The Court declined to take up the broader legal issue and instead choose not to hear the petition on the very narrow grounds that the Court lacked jurisdiction since the EPA hasn’t finalized the regulations yet. The Court noted that the agency was still accepting comments on “all aspects of the agency’s proposal” including the legal basis for regulation. Thus despite the EPA repeatedly publicly stating that Section 111(d) provided legal justification, there was no final “consummation of the agency’s decision making process” for the Court to review.
The petitioners here admitted that asking the Court to review the proposed EPA regulation was a novel use of judicial power. They argued that in anticipation of the new rules, individuals and businesses were being forced to shoulders real costs, and those costs could never be recouped if the agencies regulations were later struck down. The Court acknowledged this serious concern but didn’t feel it was sufficient, stating “courts have never reviewed proposed rules, notwithstanding the costs that parties may routinely incur in preparing for anticipated final rules.”
While all three Judges on the panel agreed to deny the petition, Judge Henderson felt that the majority’s opinion was far too stark. She argued the Court had sufficient jurisdiction to review the regulations in their current form. Nonetheless she agreed that there was no reason to hear the petition, because the EPA had announced it expected to finalize the rules by June 1st, 2015. Judge Henderson wrote “Thus, by the time the majority opinion and this concurrence issue—or shortly thereafter—the petitioners will have a final rule that can be challenged as final agency action in this Court.”
While the EPA missed its June 1st deadline, it is still expected that the new regulations will be finalized this summer. Once they are finalized this legal battle will begin anew.