Today, the United States Court of Appeals for the District of Columbia Circuit refused to review challenges of EPA’s authority to adopt comprehensive regulations of carbon emissions from exiting power plants. A coal company, joined by 12 States, had asked the Court of Appeals to prohibit EPA from finalizing its Clean Power Plan on multiple theories that the proposed rules exceeded EPA’s authority under a rarely used provision of the Clean Air Act, referred to as Section 111(d). However, the Court of Appeals ruled that it had no authority to review the legality of proposed EPA rules, and that judicial review of the Clean Power Plan must await the issuance of a final rule, which EPA has announced is expected this summer.
Newspaper headlines may describe this as a victory for EPA, and it is, but only a temporary one. All of the issues raised by the challengers and many more will be ripe for judicial review as soon as the ink is dry on the final Clean Power Plan rules. Today’s decision gives not a hint of how the panel of judges would have ruled on the merits of the claims that EPA has exceeded its authority under Section 111(d) the Clean Air Act in crafting the complex Clean Power Plan.