In re Murray Energy Corp.

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The D.C. Circuit Court of Appeals denied petitions in which states and other parties opposed to the Clean Power Plan sought rehearing of the court’s June 2015 decision dismissing a challenge to the proposed plan on the ground that it was a non-final agency action. The court also denied the alternative relief sought by the petitioners, a stay of the mandate, which the parties argued would allow the court to vacate the June 2015 decision as “academic” after EPA issues the final Clean Power Plan rule. The petitioners said a stay would be consistent with Judge Henderson’s opinion concurring with the June 2015 decision, in which she said she believed the court could exercise jurisdiction but that the arguments were “all but academic,” given that EPA would soon issue its final rule.

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States who unsuccessfully challenged EPA’s proposed Clean Power Plan in the D.C. Circuit filed a petition for rehearing or rehearing en banc. The D.C. Circuit ruled in June 2015 that it did not have jurisdiction to review a non-final agency action. The states said rehearing was necessary to prevent EPA from evading accountability. The states indicated EPA could do so by requiring regulated parties “to make immediate expenditures to comply with an unlawful but not-yet-final rule.” Alternatively, the states asked the court for a stay of the mandate so that the panel could vacate its decision as “academic,” consistent with Judge Henderson’s concurrence in which she said she believed the court could exercise jurisdiction but that the arguments were “all but academic,” given that EPA would soon issue its final rule. The states opined that when EPA does publish the final rule, “the panel could vacate its decision and leave for another time the delineation of this Court’s authority to stop extreme agency misconduct during a rulemaking.”

The D.C. Circuit dismissed the challenge in a decision that also addressed two other petitions. The D.C. Circuit concluded that it did not have authority to review proposed rules. The court rejected the argument that the All Writs Act provided it with authority to “circumvent bedrock finality principles” to review proposed regulations. The court also was not persuaded that EPA’s public statements regarding its legal authority to regulate carbon dioxide emissions constituted final agency action, or that the petitioners could challenge a 2011 settlement agreement in which EPA merely agreed to a timeline for determining whether it would regulate carbon dioxide emissions from existing plants. In a concurring opinion, Judge Henderson wrote that she believed the court had jurisdiction to consider the application for a writ of prohibition under the All Writs Act but that a writ was not appropriate because by the time the D.C. Circuit issued its opinion, “or shortly thereafter,” EPA would have issued a final rule that could be challenged as a final agency action.

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EPA asked for an additional two weeks to respond to the petition for extraordinary writ to allow for Department of Justice and EPA management review of its brief. In its unopposed motion seeking the additional time, EPA noted that the Federal Rules of Appellate Procedure permit the court to deny a petition for a writ of prohibition without requiring an answer and that respondents are not permitted to submit a responsive pleading unless requested to do so by the court.

The D.C. Circuit ordered the U.S. Environmental Protection Agency (EPA) to respond to the petition for extraordinary writ filed in June by Murray Energy Corporation challenging EPA’s authority to conduct rulemaking to regulate greenhouse gas emissions from existing power plants. EPA’s response was due on October 20.

Nine states filed a brief in support of the petition.