Fourteen states are asking a federal appeals court to revive their challenge to the Obama administration’s signature regulatory proposal on climate change.
The states, led by West Virginia Attorney General Patrick Morrisey, want all 17 judges on the Court of Appeals for the District of Columbia Circuit to hear the case that a three-judge panel rejected last month against the Environmental Protection Agency (EPA).
That panel of judges decided the challenge was premature because the rule has not yet been made final, and a court has never reviewed a proposed rule before.
The states said the judges made a huge mistake.
“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,” they wrote in their Friday petition to the 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.”
If the court does not rehear the case, “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,” the states said, referring to a June decision from the Supreme Court on another EPA regulation concerning power-plant emissions.
The states made a similar argument to the court in April, saying the proposed regulation is already having negative effects on them. The court rejected those arguments and did not comment on the merits of the case itself.
The latest appeal may soon become moot, since the Obama administration is planning to make the rule final within weeks.
The EPA has repeatedly argued the climate rule is well within confines of the Clean Air Act and will stand up to court scrutiny.
Oklahoma Attorney General Scott Pruitt filed his own lawsuit against the rule in early July in a lower federal court. That court took less than three weeks to dismiss the case, citing the D.C. Circuit opinion that the challenge was premature.
Separately from the 13-state appeal, Pruitt appealed the Oklahoma decision to the Court of Appeals for the 10th Circuit, asking that court to reconsider the dismissal.