D.C. Circuit merges challenges to EPA rules, streamlines proceedings

Dive Brief:

The U.S. Court of Appeals for the District of Columbia Circuit has issued an order combining two of Murray Energy's court challenges to the EPA's proposed Clean Power Plan, SNL Energy reports. It also ordered that a similar challenge from West Virginia be heard on the same day.
The order, issued Nov. 13, refers each challenge to the merits panel simultaneously, significantly streamlining the legal process. It also sets March 9, 2015 as the final briefing day, only three months before the EPA is scheduled to finalize the Clean Power Plan emissions regulations.
Advocates on both sides of the court case praised the move from the D.C. Circuit, saying a faster decision benefits all parties involved.

Dive Insight:

The three challenges to the EPA's proposed Clean Power Plan come at the issue from different angles, SNL Energy reports, but all concern the agency's authority to regulate carbon dioxide under the Clean Air Act.

This issue, Joanne Spalding, senior management attorney for the Sierra Club, told SNL, centers on whether Clean Air Act amendments passed by the House and Senate in 1990, but never reconciled, preclude the EPA's authority to regulate carbon emissions from existing power plants under section 111(d) of the Act if other pollutants are already covered under section 112.

Spalding called all of the challenges premature, since the rule is not yet finalized or enacted.

"The various tactics that Murray Energy and West Virginia employ in these three cases in an effort to circumvent the prohibition against challenging proposed rules are a thinly disguised attempt to create jurisdiction where there is none," she told SNL.

In October, a federal judge threw out a Nebraska challenge to the EPA rules, saying the state "jumped the gun" and should have waited to challenge the rules until they were finalized. It is unclear whether the D.C. Circuit's bundling of these three cases suggests it will adopt a similar stance.

Opponents of the Clean Power Plan acknowledge it is unusual to challenge a rule that has yet to be enacted, but argue their action is validated by the fact that states and companies are already taking compliance actions.

"Every day that a ruling on the legality of [the] EPA's action is delayed means states are spending more money preparing to implement an illegal regulation, which even [the] EPA has admitted is contrary to the literal terms of the Clean Air Act," Beth Ryan, communications director for the West Virginia Office of the Attorney General, told SNL Energy.

Last month, the D.C. Circuit Court allowed the EPA to proceed with its Cross-State Air Pollution Rule, a separate regulatory action under the Clean Air Act, while the Supreme Court hammers out final challenges to that rule.