This story has been updated.
The D.C. Circuit Court of Appeals has ruled that it’s too early to intercede in a lawsuit challenging the Environmental Protection Agency’s proposed carbon dioxide limits for power plants.
The decision was handed down Tuesday, and the coalition of states involved have indicated they’ll petition for a rehearing, and will challenge the final rule.
Thirteen states, including Kentucky, West Virginia and Indiana sued the EPA last year over the Clean Power Plan.
The rule will set individual goals for carbon dioxide emissions reductions from power plants, in an effort to curb the gases which contribute to climate change. Kentucky lawmakers have been vocal about their opposition to the rule, even though regulators’ predictions indicate the state will have to do little to comply initially.
In their argument before the court, the states argued that the EPA was improperly trying to regulate carbon dioxide emissions under Section 111(d) of the Clean Air Act. But the judges ruled that because the rule hasn’t even been finalized yet—which is expected to happen sometime this summer—it would be improper to rule on the matter.
From Circuit Court Judge Brett Kavanaugh:
“Petitioners are champing at the bit to challenge EPA’s anticipated rule restricting carbon dioxide emissions from existing power plants. 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. They want us to do 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. In justiciable cases, this Court has authority to review the legality of final agency rules. We do not have authority to review proposed agency rules. In short, we deny the petitions for review and the petition for a writ of prohibition because the complained-of agency action is not final.”
In a statement, the American Coalition for Clean Coal Electricity, an industry group, noted that the judges didn’t reject the merits of the states’ argument, just the timing. That sentiment was echoed in the statement issued by Kentucky Attorney General Jack Conway:
“Today—on jurisdictional grounds—the DC Circuit ruled against us in our challenge to the Obama administration’s proposed Section 111d rule, a rule which, if enacted, would do grave damage to Kentucky’s economy. The rule is not yet final, and we launched this early challenge in order to best protect the interests of the Commonwealth and our concern for damage to our state’s businesses and ratepayers.
“The court did not rule on the merits of our arguments and declined to rule on the matter because the rule is not yet final. The bipartisan coalition of states that I have worked with on this case is preparing a petition for rehearing. If the rules are finalized, we will challenge the final rule. This is a long-term battle regarding an overreach of the EPA and by this administration. I plan to fight every step of the way.”
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