The coal industry is taking in stride Tuesday’s court defeat in its effort to overturn the Obama administration’s emission rules for existing power plants.
Groups representing the industry and 14 states that sued over the proposed rules made clear that the federal appeals court judges did not address the “merits” of the case in making the decision to reject the litigation. That means their arguments are still valid, extending them another opportunity to sue the Environmental Protection Agency once the rules are finalized later this summer.
“Today’s court ruling was not based on the merits of the EPA’s regulation, but rather solely on the question of whether a rule could be challenged before it was deemed final by the administration,” read a statement by American Coalition for Clean Coal Electricity, a group representing the coal industry.
More than a dozen states and major coal producers Murray Energy and Peabody sued the EPA over new emission limits for existing power plants, known as the Clean Power Plan, which they argue overstep the agency’s authority and create economic hardship for many coal-producing states.
The combined lawsuit to overturn the regulations was denied by the D.C. Circuit Court of Appeals based solely on the case not yet being ripe for litigation. It was not denied because the arguments made were not persuasive enough. It was denied simply because it was too early for federal judges to act in a case based on an unfinished rule. The D.C. Circuit court does not make rulings on proposed regulations.
“Petitioners are champing at the bit to challenge EPA’s anticipated rule restricting carbon dioxide emissions from existing power plants,” said Judge Brett Kavanaugh in the court’s June 9 decision. “But EPA has not yet issued a final rule. It has issued only a proposed rule.
“Petitioners nonetheless ask the court to jump into the fray now,” he said. “They want us to do something that they candidly acknowledge we have never done before: Review the legality of a proposed rule,” adding that the court has no further action to take but to reject the lawsuit.
Mike Duncan, president of the American Coalition for Clean Coal Electricity, says although he wished the judges took a different course, “we are not surprised and look forward to our next day in court.”
That the court took up the case “before the rules were final was an unprecedented step,” Duncan said. That the judges chose to review the lawsuit “demonstrates that EPA’s regulatory overreach has caught the eye of the court.”
Republican Sen. Shelley Moore Capito of West Virginia, the state that led the challenge in the D.C. Circuit, said she is confident the suits will be taken up again once the rules are finalized by the White House.
The Clean Power Plan is undergoing pre-publication review by the Office of Management and Budget, which has slated the rule to be made final sometime in August.
“I remain confident in the merits of this case and strongly believe that the court will ultimately strike down this administration’s unprecedented power grab,” Capito said. The senator also said the court’s decision underscores the need for action by Congress.
Capito introduced a bill with the backing of Senate Majority Leader Mitch McConnell, R-Ky., that would delay the EPA plan’s implementation until all judicial review has concluded.
“As the state of West Virginia continues to pursue all available legal options, I am working diligently with my colleagues in the Senate to garner support for the … [bill] to roll back the misguided ‘Clean Power Plan,'” she said. A companion bill was passed by the House energy committee in April.
Capito has held a hearing on the Senate bill in the Environment and Public Works Committee where she heads a subcommittee.
Meanwhile, the EPA used Tuesday’s victory to reaffirm the legal standing of its regulations.
“The Clean Power Plan is built on a time-tested state-federal partnership established by Congress decades ago in the Clean Air Act that gives states important flexibility to design plans that meet their individual and unique needs,” said EPA spokeswoman Liz Purchia. She says the agency is “on track to issue a common-sense, affordable Clean Power Plan this summer that is based on the input we’ve received and will move the nation significantly forward in addressing climate change and protecting public health.”
EPA Administrator Gina McCarthy will address the Clean Power Plan Wednesday afternoon when she provides remarks at the 2015 GreenGov Symposium in Washington.
The environmental community used the court ruling to bolster grassroots support for the emission rules. Natural Resources Defense Council president Rhea Suh said in a notice to supporters Tuesday it’s “a critical moment” to demonstrate backing for EPA’s plan, especially as “Big Coal is reeling from the public pressure” to address climate change.
Suh said the coal industry is “lashing out with false claims, lawsuits and anything else their massive profits can buy to sink the Clean Power Plan.” She said the benefits of the plan would help limit lung disease and cancer. So, “keep the pressure on Big Coal,” and “speak out in support of a strong Clean Power Plan.”
