U.S. Court of Appeals denies petition for writ of prohibition on EPA’s Proposed Clean Power Rule

In In Re Murray Energy Corp. Judge Kavanaugh wrote the majority opinion for the court which held that the petitioners’ petitions for review and petition for a writ of prohibition are denied because of a lack of finality.[1]

On June 8, 2014, the Environmental Protection Agency (EPA) proposed the Clean Power Plan which, if implemented as proposed, would force existing power plants to greatly reduce the amount of carbon emissions from their plants. EPA has argued that they have authority to restrict emissions under Section 111(d) of the Clean Air Act.[2] Subsequently EPA has received over two million comments and the final rule is set to be released this summer.

In opposition the proposed rule the petitioners’ filed a lawsuit requesting a writ of prohibition (basically requesting that the court direct EPA to not promulgate the rule because it is unlawful for them to do so). Judge Kavanaugh characterized this as “asking [the court] to review the legality of a proposed EPA rule so as to prevent EPA from issuing a final rule.”[3] Kavanaugh determined the court does not have authority to review proposed rule due to a lack of finality.[4]

The petitioners put forth three arguments to attempt to circumvent the finality requirement. First, they argued that the All Writs Act[5] gave the court authority to consider their case.[6] The petitioners further argue that they are being harmed now, before the final rule issued, because they are incurring costs in preparation to comply with the final rule.[7] The court rejected this argument and declared that the All Writs Act is not meant to circumvent “bedrock finality principles” and that incurring costs in preparation to comply with a final rule has never been a justification for allowing courts to review proposed rules.[8]

Second, petitioners contended that EPA’s concrete public statements about their legal authority to promulgate this rule constitute a final agency action which is subject to judicial review. The court rejects this argument as well. The court agreed that EPA has been unwavering in its conviction that Section 111(d) gives it authority to restrict carbon dioxide emissions from existing power plants, but that this conviction does not constitute a final agency action because neither of the two finality requirements have been met.[9] Also, the court noted that EPA recognized that its statement about its legal authority to adopt the prosed rule was not the “consummation” of its decision making process because it requested public comments on all aspects of their proposal including its legal authority to promulgate the rule.[10]

Third, to attempt to get around finality requirements, the petitioners challenge a settlement agreement between EPA, several states, and environmental groups from 2011. The agreement required EPA to create a timeline to decide whether or not to promulgate a rule to regulate carbon dioxide emissions from existing power plants.[11] The petitioners’ challenge failed because the agreement did not require EPA to promulgate a rule so it did not “impose an injury in fact on entities that are not parties to the [agreement].”[12] Furthermore the court stated that the petitioners’ challenge to the agreement was untimely because they did not file within sixty days of the agreement being published.[13]

All of the petitioners’ arguments failed, so the petitioners’ petitions were denied.

Judge Karen LeCraft Henderson wrote a concurring opinion. In that opinion she concurred in the judgment, but wanted to make clear she did not agree with the majority’s “cramped view of [the court’s] extraordinary writ authority.”[14] Judge Henderson states that the court retains jurisdiction to issue writs regardless of the Clean Air Act’s limitation on judicial review because the All Writs Act vests a court with equitable powers.[15] Congress can strip courts of those powers, but must do so explicitly, which is not the case here.[16] However Judge Henderson concurs in judgment because the petitioners’ do not meet the requirements to receive a writ of prohibition.[17] Giving a writ is inappropriate is this instance because EPA will promulgate a final rule early this summer which means the petitioners will have a final rule that can be challenged as a final agency action by the time, or soon after, (as of this writing EPA has still not promulgated a final rule) this opinion is issued.[18] Therefore the imminent issuance of a final rule, in Judge Henderson’s view, moots the petition for a writ.[19]

With the petition for a writ of prohibition struck down, the legal challenge to EPA’s proposed rule is effectively dead. Another round of legal challenges is imminent once EPA promulgates final rule.