A federal court on Tuesday rejected claims by 15 states and coal companies that a proposed Environmental Protection Agency rule limiting carbon emissions from power plants was unconstitutional.
The challenge from coal company Murray Energy Corp. and the 15 states that joined it faced long odds, largely because it’s unusual for a court to consider a lawsuit before an agency rule is final. It’s a victory for President Obama and his climate agenda, though the rule no doubt will face more lawsuits when it is finalized in August.
“They want us to review something that they candidly acknowledge we have never done before: review the legality of a proposed rule. But a proposed rule is just a proposal,” U.S. Court of Appeals for the District of Columbia Circuit Judge Brett Kavanaugh wrote for the court. The three-member panel all agreed with the ruling, though judge Karen Henderson offered a concurring opinion.
The proposed EPA regulation, called the Clean Power Plan, seeks to curb electricity sector carbon emissions 30 percent below 2005 levels by 2030. It would allow states to reduce emissions by upgrading power plant energy efficiency, converting coal-fired power to natural gas, adding renewable power and enhancing customers’ energy efficiency.
“EPA is pleased that the court has denied the challenges to our proposed Clean Power Plan and confirmed our assessment that they are premature,” EPA spokeswoman Liz Purchia said.
But the ruling is just a temporary reprieve for rule supporters, with the real slog coming once the agency finalizes the regulation in August. The federal court didn’t consider the merits of the plaintiffs’ arguments in its opinion, noting that it didn’t have purview to do so when the rule was in draft form.
“The Obama EPA has promulgated a clearly illegal rule in its so-called Clean Power Plan. While we were disappointed by the court’s decision, we will fully litigate the rule once it is formally finalized by the Obama EPA and we will prevail,” Gary Broadbent, assistant general counsel and media director with Murray Energy, said in an email.
Added Joanne Spalding, chief climate counsel with the Sierra Club, which supports the regulation: “Unfortunately, we will likely see more baseless lawsuits like this, but progress towards a clean energy economy, cleaner air and water, and healthier communities is inevitable.”
Plaintiffs, led by attorney Laurence Tribe — a mentor of Obama at Harvard Law School — argued the proposal was unconstitutional because it calls on potential emissions reductions outside of individual smokestacks and delves into states’ energy planning.
Patrick Morrisey, the Republican West Virginia attorney general who brought one of the two cases the court considered, said he was “disappointed” with the result but was glad the court didn’t assess the substance of the case one way or another.
“We still think we have a compelling case that the rule is unlawful,” Morrisey said. “The narrow decision today, which put great weight on the fact that the final rule is now imminent given the time it has taken to litigate this suit, said nothing about the legality of EPA’s rule.”
But the EPA and its supporters maintain the section of the Clean Air Act law the proposed rule stems from says the agency should use the “best system of emission reduction.” The agency interprets that to mean the entire electric infrastructure that delivers power to consumers.
“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,” Purchia said.
• This article was published at 11:02 a.m. and has been updated.
