The Clean Power Plan has now won a second round in court – before the U.S. Environmental Protection Agency (EPA) has finished writing it.
The federal district court for the Northern District of Oklahoma rejected another premature challenge on Friday to the proposed standards for carbon pollution from existing fossil fuel power plants.
The first – a challenge brought by Murray Energy Corporation and several states, including Oklahoma – was dismissed by the U.S. Court of Appeals for the D.C. Circuit just last month. In that decision, the D.C. Circuit court found petitioners’ attack on the Clean Power Plan was premature — relying on the plain text of the Clean Air Act, bedrock principles of administrative law, and (as the petitioners themselves acknowledged) the unbroken practice in the D.C. Circuit allowing challenges only to final agency actions.
This finality requirement is critically important to the integrity of the administrative process, ensuring the agency has an opportunity to consider and incorporate public input and that a reviewing court evaluates the agency’s final, carefully-determined course of action.
In last month’s decision, the D.C. Circuit noted that petitioners were “champing at the bit” to challenge the Clean Power Plan. True to form, the state of Oklahoma filed another challenge – pressing substantially similar claims to those already rejected by the D.C. Circuit, but this time seeking judicial review in Oklahoma federal district court.
If the challenges in the D.C. Circuit represented an attempted end run around the judicial review provisions of the Clean Air Act, then here the plaintiffs tried a double end run — adding to their flawed premature challenge by seeking judicial review in the wrong court.
The Clean Air Act provides that a challenge to any “standard of performance or requirement under section ” — which will include EPA’s Clean Power Plan, when finalized — must be filed in the D.C. Circuit. The Clean Air Act vests the D.C. Circuit with this authority to ensure uniform and consistent review of actions that apply nationally.
The Oklahoma federal district court made short work of the suit.
On Friday, the court firmly rejected the challenges – dismissing them on the basis of the plaintiffs’ brief alone, without even waiting for EPA’s response.
The Oklahoma federal district court decision both reaffirmed the courts’ authority to review only final agency actions, and identified the D.C. Circuit as the proper venue for challenging the Clean Power Plan, when it is finalized.
In the decision, written by Oklahoma federal district court Judge Claire Eagen, the court said:
The D.C. Circuit has already determined that the proposed emission standards are not a final agency action, and that court has denied a petition to review the proposed emission standards before they become a final rule. (Page 9)
The decision also says:
Even if the Court found that it would not be premature to exercise jurisdiction over this case, plaintiffs have failed to show that jurisdictional review provision of the CAA would permit this Court to exercise jurisdiction over the case . . . . The ultimate issue of whether the EPA has the authority to promulgate the disputed emission standards pursuant to § 7411(d) must be decided by the court with exclusive jurisdiction over these matters, and that court is the D.C. Circuit. (Page 9 – Emphasis Added)
Taken together, these decisions should give pause to litigants contemplating procedurally-flawed legal challenges — but unfortunately, Oklahoma is continuing to press these misguided claims in an appeal to the U.S. Court of Appeals for the Tenth Circuit. And these are just the latest in a series of legally-unfoundedattacks on these critical standards.
The health and environmental benefits of the Clean Power Plan could be profound. As EPA prepares for the inevitable legal challenges to come, it has a strong track record of defending the Clean Power Plan and other important clean air safeguards against legal attacks. That's good news for the families and communities that are afflicted by carbon pollution from fossil fuel-fired power plants — the nation's single largest source of this climate-destabilizing pollution.