A federal appeals court on Tuesday threw out the first judicial challenge to the Obama administration’s landmark climate rule for power plants.
The Court of Appeals for the District of Columbia Circuit ruled that the energy companies and states that filed the lawsuit had jumped the gun, and the court cannot yet review a regulation that has only been proposed, but not made final.
Though the decision was widely expected, it nonetheless hands the Environmental Protection Agency (EPA) its first major win in defending President Obama’s key executive action to fight climate change.
“They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule,” Judge Brett Kavanaugh wrote in the opinion on behalf of himself and Judge Thomas Griffith, both appointed by Republican presidents.
“But a proposed rule is just a proposal,” he continued.
“In justiciable cases, this Court has authority to review the legality of final agency rules. We do not have authority to review proposed agency rules.”
Judge Karen Henderson agreed with the ruling, although she wrote a separate opinion arguing that it is within the court’s jurisdiction to review the rule if it wanted to.
While attorneys and the judges spent considerable time discussing the merits of the case during the oral arguments in April, the court did not mention the merits at all in its ruling. But those arguments can be litigated after the regulation is made final this summer.
Murray Energy Corp. led a coalition of energy companies in challenging the rule, arguing that the Clean Air Act does not allow the regulation of carbon dioxide from power plants since other emissions from those plants are already regulated.
West Virginia led 15 states that also challenged the rule, and the cases were combined.
The EPA and its allies cheered with the ruling.
“EPA is pleased that the court has denied the challenges to our proposed Clean Power Plan and confirmed our assessment that they are premature,” EPA spokeswoman Liz Purchia said in a statement.
Purchia went on to defend the merits of the regulation, which the agency contends aligns with the Clean Air Act and will prevail against further court challenges.
The Environmental Defense Fund, which joined the case to defend the EPA, applauded the decision against “deeply flawed” challenges.
“Today’s decision is a big win for clean and healthy air, and an important victory for a fair and democratic rulemaking process,” Tomás Carbonell, an attorney for the group, said in a statement. “These lawsuits were an attempt to do an end-run around the public participation process.
Murray Energy said the fight is far from over, and vowed to sue again after the regulation is made final.
“The Obama EPA has promulgated a clearly illegal rule in its so-called Clean Power Plan,” spokesman Gary Broadbent said in a statement. “While we were disappointed by the Court’s decision, we will fully litigate the rule once it is formally finalized by the Obama EPA and we will prevail.”
West Virginia Attorney General Patrick Morrisey also said he knew it would be tough to fight a proposed rule.
“While we are obviously disappointed with the court’s ruling today, we still think we have a compelling case that the rule is unlawful,” Morrisey said in a statement.
“When we filed this case last summer, we knew there would be procedural challenges, but given the clearly illegal nature of the rule and the real harm occurring in West Virginia and throughout the country, we believed it was necessary to take all available action to stop this rule as soon as possible. We believe that the litigation has further revealed the weakness of EPA’s arguments on the merits.”
Morrisey did not specifically pledge to sue when the rule is made final, but he said he will “continue to take every available step” to protect West Virginia from the regulation.
The EPA plans to make the regulation final in August, at which point more court challenges are expected.
As proposed last June, the rule would cut the power sector’s carbon emissions 30 percent by 2030.
— This story was updated at 1 p.m.