EPA: With Clean Power Plan not final yet, court challenges should be rejected

The U.S. Environmental Protection Agency told a federal appeals court on Jan. 23 that efforts to overturn the proposed Clean Power Plan is premature, since this CO2-reducing plan isn’t final yet.

“Petitioners seek to stop this ongoing rulemaking,” EPA said in a brief filed at the U.S. Court of Appeals for the D.C. Circuit about provisions of the Clean Air Act. “To avoid the requirement that a rule be final before judicial review occurs, they purport to challenge an obsolete 2010 settlement agreement wherein EPA agreed to propose a rule addressing power plant greenhouse gas emissions by mid-2011, arguing that EPA’s regulation of power plants’ hazardous pollutant emissions in 2012 rendered that prior agreement unlawful. The premise of Petitioners’ suit is wrong; the Proposed Rule is not the result of that settlement agreement, but rather part of an Administration initiative to address the most critical environmental problem of our time. Petitioners are also wrong on the merits; section 7411(d) need not be read to have the illogical result of barring regulation of CO2 because power plants’ emissions of other pollutants have been regulated under section 7412. Above all, Petitioners are wrong to think that they can preempt a rulemaking. This Court has never so allowed, and it should not do so now.”

The filing is in a case brought by the state of West Virginia, which is the nation’s second-largest coal producer. This case is related to, and has been designated by the appeals court for argument on the same day as, two consolidated cases filed in June and August of last year by the same coal producer, Ohio-based Murray Energy Corp.

EPA also argued in the Jan. 23 brief: “No matter how urgent Petitioners believe their concerns regarding EPA’s legal authority to be, they have chosen both the wrong context and the wrong time in which to raise them. First, their challenge to the Settlement Agreement is not justiciable because the Agreement does not ‘injure’ Petitioners in any way that could give rise to Article III standing. The Agreement sets dates for rulemaking, but does not limit EPA’s discretion concerning what final action to take, alter any applicable rulemaking procedures, or purport to make any change in a regulatory program. Nor does the Agreement, standing alone, impose obligations on Petitioners or any other entity. This Court has long held that non-settlors lack Article III standing to seek judicial review for the purpose of blocking or setting aside such settlements.

“Second, for related reasons, the Settlement Agreement cannot be considered a ‘final agency action.’ It does not determine the rights or obligations of, or impose legal consequences on, any non-party to the Agreement. Rather, legal consequences could be imposed only if EPA promulgates a final regulation following notice and comment, which would then be reviewable in this Court.

“Third, any challenge concerning the Settlement Agreement has become moot. EPA already has published the ‘proposed’ rule that was due under the Agreement, and the Agreement does not require final promulgated standards because EPA retains its discretion to decide what final action to take.

“Fourth, the Act requires that petitions for review be brought within sixty days after the relevant Federal Register publication, which in this case occurred on April 23, 2012. Petitioners waited more than two years after that date to file this case, and that time limit is jurisdictional.

“Finally, because EPA is currently in the midst of a notice-and-comment rulemaking process in which it will evaluate and respond to comments on the very issue Petitioners would have this Court prematurely decide, this petition is not ‘fit’ for a judicial decision and must be dismissed as unripe.

“If this Court reaches the merits, it should conclude that Petitioners’ interpretation of section 7411(d) as barring regulation of all pollutants under that section once a source category has been regulated in regard to hazardous pollutants under section 7412 is not the only way to read the convoluted text at issue. That text – which includes both the House’s and Senate’s 1990 amendments – is ambiguous and can be read multiple ways, allowing for reasonable Agency interpretation. One reasonable interpretation is that EPA may regulate, under section 7411(d), any pollutant that is not a ‘hazardous’ or ‘criteria’ pollutant regulated elsewhere under the Act. Unlike Petitioners’ contrary reading, such an interpretation of section 7411(d) would be consistent with the statutory context and legislative history. Thus, the Court cannot conclude at this preliminary stage of the rulemaking process that Petitioners’ reading of section 7411(d) is the only permissible reading.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.