A three-judge federal appeals court has thrown out two lawsuits filed by the biggest U.S. coal companies and 15 coal states that challenged President Obama’s key policies on climate change. The judges ruled unanimously that it couldn’t block a regulation that hadn’t yet gone into effect.
On June 2, 2014, the U.S. Environmental Protection Agency (EPA) proposed a rule that would cut greenhouse gas emissions from power plants, thereby leading to the closure of hundreds of them, most powered by coal, and halt construction on many others. This in turn would severely dampen the country’s demand for coal.
Since then the agency has slightly revised the proposal, based in part on public hearings, and is expected to announce the rule in its final form in August. Because the regulation is now still in its draft form, however, the U.S. Court of Appeals for the District of Columbia rejected the lawsuits on June 9, saying no American court has reviewed a rule that has yet to go into effect.
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“They want us to do something that they candidly acknowledge we have never done before,” wrote one of the judges, Brett Kavanaugh. “We do not have authority to review proposed agency rules.” The panel also ruled that even the EPA’s public statements about the specifics of the rule cannot be considered final action by the agency.
After the ruling, the EPA issued a statement saying it was “pleased that the court has denied the challenges to our proposed Clean Power Plan and confirmed our assessment that they are premature.”
The decision also was welcomed by environmentalists, including David Doniger, the director of the climate and clean air program for the Natural Resources Defense Council. “The first legal challenge to the Clean Power Plan failed today,” he said, “and others the polluters will trot out should fail as well.”
And trot them out they will, as soon as the rule becomes final.
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“We are obviously disappointed with the court’s ruling today, but we still think we have a compelling case that the rule is unlawful,” said West Virginia Attorney General Patrick Morrisey, who led the plaintiffs’ oral arguments in the case. Coal mining is a major industry in his state.
“As the court recognized, the rule will be final very soon, and we look forward to continuing to press the issue,” Morrisey said. “We will continue to take every available step to protect our citizens and the State of West Virginia from this unlawful power grab by Washington bureaucrats.”
In announcing the proposed regulation a year ago, EPA Administrator Gina McCarthy said its goal is to reduce carbon emissions from coal-fired power plants by 30 percent below 2005 levels by 2030. She said the rule will be flexible, allowing states several options to achieve the goal, including adopting efficient energy technology and adding alternatives like wind and solar.
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One of the lawsuits against the proposed regulation was filed by Murray Corp. of St. Clairsville, Ohio, the nation’s largest privately held coal-mining company. After the court ruling, the company issued a statement saying it plans to “fully litigate the rule” once it becomes final.
The other lawsuit was filed by the coal states of Alabama, Alaska, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, West Virginia, Wyoming and Wisconsin.
By Andy Tully of Oilprice.com
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Andy Tully is a veteran news reporter who is now the news editor for Oilprice.com