Responding to an Aug. 13 notice of appeal from several
states, including coal-reliant West Virginia and Kentucky,
the U.S. Environmental Protection Agency Aug. 31 told
a federal court that its
Clean Power Plan can't be appealed because it is not
final until it is published in the Federal Register.
Federal courts rejected appeals by parties like coal
producer Murray Energy when the Clean Power Plan was in its
proposal stage, which lasted for about a year. Then in early
August, EPA issued the final version, which included a
number of changes from the proposed version, including a
two-year pushback to 2022 for the interim compliance
deadline, and a new
greenhouse gas reduction target from existing power
plants of 32 percent (up from the original 30 percent) by
2030. But the final rule has not yet been published in the
Federal Register, even though the clock is already ticking
for states to comply with it.
The petitioners in this lawsuit against the final version of
the rule at the U.S. Court of Appeals for the D.C. Circuit
are West Virginia, Alabama, Arkansas, Florida, Indiana,
Kansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South
Dakota, Wisconsin, Wyoming and Kentucky.
Said EPA's Aug. 31 brief opposing their appeal: "Petitioners
once again prematurely attack EPA’s Clean Power Plan ('the
Rule') and attempt to bypass the straightforward, and soon
available, judicial review procedures in the
Clean Air Act (the 'CAA' or the 'Act') by invoking the
All Writs Act. This Court has already concluded in a
decision issued earlier this summer that Petitioners must
adhere to those procedures in challenging the Rule [in the
Murray Energy case]. Those procedures plainly provide that
petitions for review of final rules under the Act must be
filed 'within sixty days from the date notice
of...promulgation...appears in the Federal Register.'
Publication in the Federal Register, while shortly
forthcoming, has not yet occurred. Thus, both the plain
terms of the Act and this Court’s binding precedent compel
dismissal of these petitions.
"Even if the All Writs Act authorized judicial review, the
requested extraordinary relief is wholly unwarranted.
Petitioners can point to no harm that they will suffer in
the brief period before the Rule is published in the Federal
Register, which should occur within a period of less than
two months and after which they will have a full and fair
opportunity for judicial review. The Rule is not legally
effective until 60 days after it is published, and it does
not contain imminent deadlines. Far from it. The carbon
pollution standards for fossil fuel-fired power plants
required by the Rule will not begin to go into effect until
at least 2022 – seven years from now.
"Although the Rule instructs the states to submit plans to
implement those standards, and imposes a September 2016
deadline for the submission of a state plan, a state may
obtain a two-year extension of that deadline by submitting,
by that same date, a minimal initial submittal. Thus the
earliest plan-related submissions under the Rule are 12
months away and are not burdensome should the state elect to
request the full three years to complete plans. Moreover, a
state may elect to have EPA do the work required to
implement standards within the state – in which case the
state need not make any submission at all. States that
submit their own plans pursuant to the Rule have a full
three years – until September 2018 – to do so (assuming
states pursue an easily obtainable extension). Accordingly,
Petitioners do not face any irreparable harm from the
deadlines in the Rule, let alone any irreparable harm in the
brief period of time before they may file a lawful challenge
to the Rule under the CAA. There is absolutely nothing that
Petitioners are required to do in this brief period before
Rule publication.
"Nor are Petitioners clearly and indisputably entitled to
relief with respect to the merits of their claims, as
required for issuance of an extraordinary writ. EPA has
well-established authority under section 111 of the CAA, 42
U.S.C. § 7411, to establish emission guidelines for carbon
dioxide (CO2) emissions from power plants.
Indeed, the Supreme Court has already specifically concluded
that EPA has this authority [in a 2011 case involving
American Electric Power].
"The public interest also strongly weighs in favor of
denying this second effort to circumvent the CAA’s judicial
review procedures. The challenged Rule addresses greenhouse
gas pollution that poses a monumental threat to the United
States by causing long-lasting changes in our climate,
resulting in an array of severe negative effects on public
health and welfare. The Rule will secure critically
important reductions in greenhouse gas emissions from the
largest emitters in the United States. Disruption of this
important Rule before it has even been published, and before
other parties with an equally strong interest in judicial
review proceedings have a fair opportunity to participate
and be heard, would frustrate the public interest. In short,
these petitions should be promptly dismissed."
Parties to the case have a deadline of Sept. 4 to respond to
EPA's Aug. 31 brief.
This story was republished with permission from GenerationHub.