Two Strikes and Oklahoma’s Out (For Now): Another Challenge to the Clean Power Plan Is Rejected

On Friday, Judge Claire Eagan dismissed Oklahoma’s latest challenge to EPA’s Clean Power Plan.  ghg-chartYes, that plan.  The one that hasn’t been promulgated yet.

Following rejection  by the D.C. Circuit Court of Appeals of a prior law suit, Oklahoma tried again, this time on what it presumably hoped would be more friendly ground, the Northern District of Oklahoma.  Not so much.

At this point, Oklahoma was facing a judge who knew that the D.C. Circuit had already concluded that EPA has not yet taken final agency action.  Moreover, district courts have no jurisdiction to hear challenges to EPA Clean Air Act rulemaking.  Oklahoma tried to get around all this by arguing that EPA’s action in proposing the rule was ultra vires, justifying immediate suit in the District Court.  I don’t think so.  Even if EPA’s authority is questionable – an issue that will obviously be litigated when the final rule is promulgated – there’s a big difference between being wrong and acting ultra vires.

As Judge Eagan noted:

Plaintiffs’ claims are exaggerated. The D.C. Circuit noted that the EPA is expected to announce a final rule this summer, and there is no reason to believe that plaintiffs will have to wait for long before renewing proceedings in the D.C. Circuit if they intend to challenge the final rule. Plaintiffs can request a stay of any final rule issued by the EPA to avoid incurring costs while litigation is pending. The Court also finds that plaintiffs’ argument concerning the EPA’s authority to promulgate emission standards for coal-fired power plants pursuant to § 7411(d) simply highlights the complex nature of the CAA’s regulatory and administrative scheme….

I’m sorry, but this case was absurd.  I’m sure EPA wishes that it were possible for the prevailing party to be awarded its fees.  If ever there were a case in which it would be justified, this was it.

One thought on “Two Strikes and Oklahoma’s Out (For Now): Another Challenge to the Clean Power Plan Is Rejected

  1. Pingback: State AGs on Front Lines in Battle over Clean Power Plan | State AG Insights

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