Jump to Navigation
Jump to Content

In re Murray Energy Corp.

ELR Citation: 45 ELR 20110
Nos. 14-1112 et al., (D.C. Cir., 06/09/2015)

The D.C. Circuit dismissed petitions for review challenging EPA's anticipated rule restricting carbon dioxide (CO2) emissions from existing power plants. On June 18, 2014, EPA proposed a rule to restrict CO2 emissions from existing coal-fired and natural gas-fired power plants. The comment period has since passed, and EPA intends to issue its final rule this summer. Petitioners—coal companies, industry groups, and roughly a dozen states—filed suit asking the court to enjoin EPA from issuing the final rule. They argue that CAA §111(d) does not grant EPA authority to limit CO2 emissions from existing power plants. But a proposed EPA rule is not final agency action subject to judicial review. Despite petitioners' arguments to the contrary, the All Writs Act does not authorize a court to circumvent bedrock finality principles in order to review proposed agency rules, nor do EPA's public statements about its legal authority to regulate CO2 emissions constitute final agency action. In addition, state petitioners separately challenged a 2011 settlement agreement that EPA reached with other parties in hopes of obtaining a "backdoor ruling" that EPA lacks legal authority under §111(d) to regulate CO2 emissions from existing power plants. But the settlement agreement did not obligate EPA to issue a final rule restricting CO2 emissions from existing power plants; it simply set a time line for EPA to decide whether to do so. As such, the state petitioners have no injury in fact and lack standing. And even if they did, the challenge is untimely. The court therefore dismissed the petitions for review.