No, Virginia, You Can’t Challenge a Rule that Hasn’t Even Been Promulgated

Easy way to tell when you’ve lost your appeal?  When a pithy judge starts making fun of you in the first sentence of the opinion.  In a case that was only ever going to have one outcome, the D.C. Circuit Court of Appeals today rejected all of the pre-promulgation challenges to EPA’s Clean Power Plan.  Judge Kavanaugh began by noting that:

Petitioners are champing at the bit to challenge EPA’s anticipated rule restricting carbon dioxide emissions from existing power plants.

(And kudos to Judge Kavanaugh for “champing”, rather than “chomping”.)  He then quickly demolished petitioners’ arguments.  In short, the Court of Appeals reviews final agency action and a proposed rule just plain isn’t final agency action.  Petitioners made three arguments attempting to get around the lack of finality.  Judge Kavanaugh made short shrift of them all.

  1. The All Writs Act, relied on by petitioners, is only to be used to protect a court’s jurisdiction. This is not such a case.
  1. Petitioners argued that EPA’s public statements about its legal authority demonstrated that it had already made up its mind. However, even if true – which the Court did not accept – “the agency’s statements about its legal authority – unconnected to any final rule or other final agency action – do not impose any legal obligations or prohibitions on petitioners.”
  1. The petitioners could not avoid these problems by casting their challenge as relating instead to an EPA settlement in 2011. The argument failed twice.  First, because EPA did not agree to promulgate the Clean Power Plan rule; it only agreed to a schedule for deciding whether it would issue such a rule.  Second, the petitioners’ challenge to the settlement was in any case untimely.

There are legitimate legal questions about EPA’s authority here, but this case was a dead cert loser from the get-go.  I think it was frivolous.  Companies always complain about frivolous law suits and ask why they cannot recover their costs in defending them.  EPA’s got to be wondering here why it cannot recover all of the resources it was forced to expend defending this case.

Dog bites man.

One thought on “No, Virginia, You Can’t Challenge a Rule that Hasn’t Even Been Promulgated

  1. Pingback: Two Strikes and Oklahoma’s Out (For Now): Another Challenge to the Clean Power Plan Is Rejected | Law and the Environment

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