D.C. Circuit declines to do early review of EPA greenhouse rule

The U.S. Court of Appeals for the District of Columbia Circuit has declined to review the U.S. Environmental Protection Agency’s greenhouse gas standards for new power plants prior to issuance of a final rule by EPA.

In a two-paragraph order issued Dec. 13, a three-judge panel declined to review the EPA regulation at this stage. “The challenged proposed rule is not final agency action subject to judicial review,” the D.C. Circuit said in the order.

The case, No. 12-1248, involved a challenge brought by Las Brisas Energy Center, LLC against EPA. The Conservation Law Foundation had intervened in the case.

Industry officials “were trying to head off the standards at the pass,” a Sierra Club spokesperson told GenerationHub.

An industry attorney, Jeff Holmstead, put it differently.

“It wasn’t really an effort to stop the GHG rules from coming out.  Rather, we wanted the Court to say that the approach EPA proposed for coal-fired power plants was illegal,” Holmstead said.

“EPA said, in the proposal, that the “best demonstrated technology” for controlling GHG emissions from a new coal-fired plant was to build a gas-fired plant instead.  This is completely inconsistent with the way the Clean Air Act works,” Holmstead said. Holmstead is a former top EPA deputy during the George W. Bush administration.

Industry argued unsuccessfully that in this circumstance the EPA proposal should be considered a final agency action.

“The Court said that our lawsuit was premature, but it did not say anything about the merits of our argument,” Holmstead said. “If EPA continues on its current path and issues a final rule that effectively bans new coal-fired power plants, I’m pretty confident that the rule will be overturned in court,” the industry lawyer said.

For now at least, supporters of the greenhouse rule claimed victory.

“Today the D.C. Circuit Court rejected polluters’ latest attack on clean air, clearing the way for the Environmental Protection Agency to continue its work of protecting Americans’ health and well-being,” said Sierra Club Executive Director Michael Brune.

“After a year of extreme weather — from a devastating drought, to raging wildfires, and the calamitous Superstorm Sandy — it is clearer than ever that we must take action to reduce climate-disrupting carbon pollution. We look forward to EPA finalizing this crucial standard, and we will continue to support their critically important work against industry attacks,” Brune said in a statement.

Industry officials had filed the petition in June, 60 days after the proposal was published in the Federal Register.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.