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Oklahoma v. McCarthy

ELR Citation: 45 ELR 20138
Nos. 15-CV-0369, (N.D. Okla., 07/17/2015) (Eagan, J.)

A district court held that it lacks jurisdiction over Oklahoma's lawsuit against EPA challenging its proposed emission standards for coal-fired power plants. The state argues that the proposed emission standards, if adopted as a final rule, would constitute an ultra vires action in violation of the U.S. Constitution. The state also claimed that it will suffer immediate harm from the proposed emission standards because it will be forced to take immediate and costly steps to comply with them. But as the D.C. Circuit already held in In re Murray Energy Corp., Nos. 14-1112 et al., 45 ELR 20110 (D.C. Cir. June 9, 2015), the proposed emission standards do not constitute a final rule that is subject to judicial review under the CAA. Although an ultra vires claim can in certain circumstances provide a basis for a federal court to consider a challenge to an agency action, the allegation does not by itself give rise to an exception to the general rule that only final agency actions are subject to judicial review. Here, the state failed to show that this case involves any exceptional circumstances that would warrant immediate judicial intervention. The judicial review sought by the state is simply premature rather than wholly prohibited by statute. In addition, the state will have a forum to challenge the final emission standards before they take effect, and it can request a stay of any final rule issued by EPA to avoid incurring costs while litigation is pending.