DOJ asks court to dismiss lawsuit against EPA climate rule

Obama administration attorneys are calling a lawsuit against the Environmental Protection Agency’s landmark climate rule “premature” and says it should be dismissed.

The Court of Appeals for the District of Columbia Circuit has no jurisdiction over regulations that have not been finalized, so it cannot take the case, lawyers told the court in a brief filed late Monday.

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“This petition is one volley in a barrage of premature litigation trying to stop EPA from completing a rulemaking addressing carbon dioxide (CO2) emissions from existing power plants,” Justice Department attorneys wrote.

Coal mining company Murray Energy Corp. filed the lawsuit in June, the same day the EPA formally proposed its rule to cut carbon emissions from power plants 30 percent by 2030.

Courts are usually allowed to take cases on federal regulations only after they have been finalized. That led the administration attorneys to argue that the ruling Murray is requesting is “indeed truly extraordinary.”

Murray recognized that fact when it filed the lawsuit but said the EPA’s proposal represented such an egregious and obvious overreach of its power that the court’s action is necessary.

The EPA told the court that Murray has the opportunity to bring up those concerns in comments filed to the agency, and to sue after the rule is finalized next year.

“It is well established that there is no jurisdiction to review a proposed rule or ongoing rulemaking,” the lawyers wrote.

While the administration’s main argument to the court is that Murray’s timing is premature, attorneys also said that Murray would not be regulated under the rule, so it does not have standing to sue.

And even if Murray could bring the lawsuit, the Clean Air Act is ambiguous enough to allow the EPA the leeway to write its carbon rule, the attorneys told the court.

Murray stood by its claims.

“The plain language of the Clean Air Act clearly prohibits the Obama administration’s radical Environmental Protection Agency from promulgation of these unlawful and very damaging rules, and the EPA’s motion to dismiss does not change this fact,” Murray spokesman Gary Broadbent said in a statement.

The court has asked Murray to respond to the EPA’s brief by Nov. 17.

Twelve states have filed a similar lawsuit against the EPA’s proposed rule, and most of those states are helping Murray with its litigation. 

A federal judge last month dismissed a lawsuit brought by Nebraska against a separate EPA proposal on carbon emissions from new coal-fired power plants.

That judge ruled that the lawsuit was premature because the rule had not been made final.