By Ken Ward Jr.
A federal appeals court has turned down legal challenges filed by Murray Energy and West Virginia Attorney General Patrick Morrisey over the Obama administration's proposed rule to reduce greenhouse gas emissions from power plants.
In a ruling made public Tuesday, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia threw out the suits over a proposed rule that the U.S. Environmental Protection Agency calls its "Clean Power Plan."
Writing for the court, Judge Brett M. Kavanaugh said that legal challenges to the EPA rule were premature because the rule had not yet been finalized.
"Petitioners are champing at the bit to challenge EPA's anticipated rule restricting carbon dioxide emissions from existing power plants," Kavanaugh wrote. "But EPA has not yet issued a final rule. It has only issued a proposed rule.
"Petitioners nonetheless ask the court to jump into the fray now," the judge said. "They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule. But a proposal is just a proposal. 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."
EPA says it hopes to finalize its proposal sometime this August. The rule, proposed last June, aims to reduce greenhouse gas emissions from coal-fired power plants and is a key part of President Obama's plan for the United States to emerge as a global leader in the movement to curb emissions and avoid the most drastic impacts of climate change.
In separate cases that were consolidated by the court, Ohio-based Murray Energy and Morrisey, a Republican, challenged the EPA proposal. Morrisey challenged the rule on behalf of the state of West Virginia, and was joined by the states of Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and Wyoming.
Kavanaugh, in dismissing Morrisey's specific legal arguments, noted that West Virginia had tried to "obtain a backdoor ruling from the court" by challenging a 2011 settlement between EPA and several other states and environmental groups in which EPA agreed to a timetable for the greenhouse gas rulemaking.
"But the settlement agreement did not obligate EPA to issue a final rule restricting carbon dioxide emissions from existing power plants," Kavanaugh wrote. "It simply set a timeline for EPA to decide whether to do so. As our precedent makes clear, a settlement agreement that does nothing more than set a timeline for agency action, without dictating the content of that action, does not impose an injury in fact on entities that are not parties to the settlement agreement."
Kavanaugh was joined in the decision by Judge Thomas B. Griffith. Judge Karen LeCraft Henderson wrote a separate opinion saying that the court had jurisdiction, but that she still would have ruled for EPA. Kavanaugh and Griffith were appointed by President George W. Bush. Henderson was appointed to a district court by President Ronald Reagan and to the appeals court by President George H.W. Bush.
(c)2015 The Charleston Gazette (Charleston, W.Va.)