Clean Power Plan Wins a Round in Court

The proposed Clean Power Plan has won its first court battle – before the U.S. Environmental Protection Agency (EPA) has finished writing it.

Today’s decision by the U.S. Court of Appeals for the D.C. Circuit ends a deeply flawed set of lawsuits, including legal claims made by Laurence Tribe on behalf of Peabody Energy, that – disregarding bedrock principles of federal administrative law – attempted to overturn federal clean air standards that have not yet been finalized.

A three-judge panel D.C. Circuit Court ruled today that opponents cannot challenge a rulemaking until after a final rule is issued, holding that petitioners “want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule.”

“Today’s decision is a big win for clean and healthy air, and an important victory for a fair and democratic rulemaking process,” said Tomás Carbonell, an attorney for Environmental Defense Fund, which was a party to the case. “These lawsuits were an attempt to do an end-run around the public participation process. Now EPA can focus on creating the best possible Clean Power Plan, so we can reduce carbon pollution and protect our communities from the clear and present danger of climate change.”

EPA’s proposed Clean Power Plan will establish the nation’s first-ever limits on carbon pollution from existing fossil fuel-fired power plants – the largest source of such pollution in the country. Power plants are responsible for about one‐third of all domestic greenhouse gas emissions – the pollution that causes climate change.

EPA is now considering more than four million public comments that it received on its proposed Clean Power Plan, and is expected to issue a final rule this summer. However, a group of states and industry petitioners sued to stop the rule before it was final – an action with no legal precedent.

In today’s decision by Judges Kavanaugh, Griffith and Henderson, the court rejected these challenges as lacking in any basis in law.

You can read more about the lawsuits in our blog post and on our website – where you can also find all the legal briefs in the case.