All of the judges at the U.S. Court of Appeals for the D.C. Circuit on Sept. 29 refused a request by parties including the state of West Virginia for en banc rehearing of a decision by a three-judge panel at the court to reject an appeal of the U.S. Environmental Protection Agency’s Clean Power Plan.
In June, before the EPA on Aug. 3 issued the final version of the Clean Power Plan, which calls for 32% greenhouse gas reductions from existing power plants by 2030, the three-judge rejected the appeal as premature, since at that time the rule was only in the proposal stage. But, even though the final plan was issued on Aug. 3, it has not yet been published in the Federal Register, which is legally considered its final version.
Said the very brief Sept. 29 decision by the full appeals court: “Upon consideration of petition of petitioners State of West Virginia, et al., for rehearing en banc, and the absence of a request by any member of the court for a vote, it is ORDERED that the petition be denied.”
Said the July 24 appeal to the full court from the plaintiffs: “This case involves EPA’s effort to require States to begin complying with the agency’s clearly unlawful rule to reduce carbon dioxide emissions before EPA even finalizes that rule. To achieve this pre-compliance goal, EPA’s Administrator engaged in an unprecedented course of threatening the States to begin designing state plans under the Rule—which requires shifting away from other sovereign prerogatives—while the rulemaking process is still ongoing.
“15 States asked this Court for relief from these irreparable and unlawfully imposed harms. The panel majority rejected the States’ pleas, holding that this Court lacks authority because the Section 111(d) Rule is not yet final. In doing so, the panel majority broadly concluded that this Court may never stop agency misconduct during an ongoing rulemaking—no matter how harmful or plainly illegal.
“Judge [Karen LeCraft] Henderson issued a decision concurring only in judgment, disagreeing with the panel majority’s novel and limited view of this Court’s authority under the All Writs Act. Agreeing with the States that this Court can issue an extraordinary writ to stop an ongoing rulemaking, Judge Henderson nevertheless concurred with the panel majority’s disposition because she thought the impending finalization of the Rule made the States’ need for relief ‘all but academic.’ Rehearing is warranted because the panel majority’s decision will have far-reaching consequences for the conduct of agencies in rulemaking, in violation of precedent from this Court and the Supreme Court.
“Under the panel majority’s decision, an agency can repeatedly threaten regulated parties to make immediate expenditures to comply with an unlawful but not-yet-final rule, and evade legal accountability for this misconduct. And the agency can do so even when such irreparable harms are visited upon sovereign States and their citizens. Absent rehearing, this powerful tool will only further enable agencies to make their policy goals a practical reality before the courts can review their legality—a tactic EPA brazenly touted after losing in Michigan v. EPA, 135 S. Ct. 2699 (2015).
“In the alternative, the States move the panel for a stay of the mandate, to allow the panel the option of vacating its decision as ‘academic.’ The States agree with Judge Henderson that, due to the passage of time, the threshold arguments here will soon become ‘all but academic.’ While EPA has not acted as quickly as Judge Henderson anticipated, EPA is expected to finalize the Section 111(d) Rule any day now. When EPA thereafter publishes the final Rule in the Federal Register, the panel could vacate its decision and leave for another time the delineation of this Court’s authority to stop extreme agency misconduct during a rulemaking. This panel could then promptly adjudicate the legality of the Section 111(d) Rule, serving the interests of both judicial efficiency and the public interest.”
Said EPA in its Aug. 6 response brief: “Respondents the United States Environmental Protection Agency (‘EPA’) and Administrator Gina McCarthy hereby oppose the alternative motions filed by Petitioner States West Virginia et al., Petitioner Murray Energy Corp., and Intervenor Peabody Energy (‘Rehearing Petitioners’) to stay the mandate until EPA publishes its final rule addressing carbon dioxide emissions from existing power plants under section 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d), in the Federal Register.
“In their Petitions for Rehearing or Rehearing en banc, Rehearing Petitioners include an alternative request – styled as a motion – that the Court stay the mandate in these cases if it denies the petitions for rehearing. This alternative motion should be denied. The Court held that it ‘does not have authority’ over the petitioners’ challenges, and that the states lack standing. In re Murray Energy Corp., 788 F.3d 330, 334-36 (D.C. Cir. 2015). Accordingly, the only thing left for the Court to do is dismiss the cases. EPA’s issuance of a final rule changes nothing in this regard. In any event, the final rule has not been published, and under the Court’s well-settled law, any challenge to a final rule at the pre-publication stage is premature.”
Peabody Energy (NYSE: BTU) is the nation’s largest coal producer, while Ohio-based Murray Energy is the country’s largest privately-held coal company.