Clean Power Plan Litigation: Thoughts on Ripeness and Standing

by Marlo Lewis on April 30, 2015

in Blog

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In Murray Energy Corporation v. EPA, petitioners seek an “extraordinary writ” from the D.C. Circuit Court of Appeals to prohibit further action on EPA’s “ultra vires” (unlawful) Clean Power Plan (CPP) rulemaking. They also seek judicial review of EPA’s legal opinion that §111(d) of the Clean Air Act (CAA) authorizes such regulation.

Previous posts discuss the merits of the case. To recap very briefly, petitioners contend the CPP is plainly unlawful under §111(d), the very provision supposedly authorizing it. CAA §111(d) prohibits EPA from requiring States to adopt performance standards for existing facilities in source categories already regulated under §112. Power plants have been so regulated since December 2011, when EPA finalized its Mercury Air Toxics Standards (MATS) rule. According EPA and its allies, the so-called 112 exclusion is “ambiguous,” EPA’s proposed resolution of the ambiguity is a “reasonable construction” of the statute, and under said construction the CPP is lawful.

The Court heard oral argument on April 16. Most commentary I’ve seen does not expect the Court to rule on the merits but rather to dismiss the petition on “ripeness” and “standing” grounds. Here’s why. The CPP is still a proposed rule. Typically, courts allow the notice-and-comment rulemaking process to play out, limiting review to final agency actions. In addition, demonstrating a “concrete and particularized” injury from an agency action is hard when the final form of the action is undecided and (presumably) still unknown.

On ripeness, Judges Griffith and Kavanaugh asked whether EPA Administrator McCarthy’s cheerleading for the CPP indicates the public comment process won’t change anything and is therefore a “sham.” On standing, Judge Kavanaugh asked whether actions some States are already taking to comply with the CPP help petitioners demonstrate injury, even though States and industry often engage in preparatory action before rules are finalized.

Those questions don’t get to the heart of the matter. The case is ripe because EPA’s basic position on the 112 exclusion is for all practical purposes a final agency action. EPA must conclude that §111(d) does not prohibit performance standards for existing facilities regulated under §112 or else the whole rule collapses.

In theory, of course, EPA could pull an Emily Litella, conclude petitioners are correct about the 112 exclusion, and toss the CPP into the rubbish bin. But if EPA did that, the “centerpiece” of President Obama’s entire climate policy agenda would disappear. So would the core of Obama’s emission-reduction pledge — the administration’s Intended Nationally-Determined Contribution (INDC) — in the COP 21 negotiations for a new international climate agreement. For Obama, the CPP and a new climate pact are legacy policies on a par with Obamacare. Moreover, were EPA to pull the plug on the CPP and, thus, wreck COP 21, the President’s environmentalist base would go berserk.

In short, there is no turning back. EPA is not going to change its legal position on the 112 exclusion (though it might of course modify its rationale for that position).

Murray has standing for similar reasons. Murray Energy Corporation produces and sells coal. Regulations that impose severe cuts in demand for coal as an electricity fuel injure Murray. The CPP is transparently a plan to accelerate fuel-switching from coal to natural gas, renewables, and nuclear power. That’s the only way to achieve a 30% reduction in power-sector CO2 emissions by 2030 (the announced CCP target).

Yes, in theory, EPA could pull another Emily Litella and base States’ CO2 reduction targets solely on what coal power plants can achieve “inside the fence line” through heat-rate efficiency improvements. If the efficiency upgrades were reasonable, taking cost into account, the CPP might not injure Murray at all. But any such retreat would, again, nix the CPP as a legacy policy and upend the COP 21 negotiations. So it’s not going to happen.

Alas, even though I think the case is ripe and Murray has standing, statements during oral argument indicate the Court will deny the petition as inconsistent with judicial restraint.

Judge Griffith worried there are no “judicially manageable standards” the Court can use “to determine short of the final rule when a challenge is justiciable,” and opined that the petition would lead the Court into a “morass.” Arguing for petitioners, Prof. Lawrence Tribe acknowledged he could not provide a “bright line test” for when a proposed rule is justiciable.

Judge Kavanaugh opined that the petition would put the Court in the “middle” of a rulemaking before EPA has an opportunity to change its mind. Overturning a rule at the proposal stage would, in his words, “preclude the whole process that is designed to lead to a reasoned final result.” He also seemed doubtful that an extraordinary writ is petitioners’ only recourse: “you can move for a stay as soon as the final rule is out there, which could be eight weeks, take us time to write an opinion.”




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