Recently the U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the U.S. Environmental Protection Agency’s (EPA’s) proposed Clean Power Plan, which seeks to regulate greenhouse gas emissions from utilities. Before the court were Murray Energy’s petitions for extraordinary writ and for judicial review as well as a joint petition from 12 states seeking a judicial review of the proposed Clean Power Plan.

Only reaching the procedural issues, and in line with many of the panel’s questions to the petitioners during oral argument, the court ruled that the appeal was premature because the complained-of action was not a final agency action. The court’s opinion did not discuss the merits of the petitioners’ challenge. A final Clean Power Plan is expected later this summer. In all likelihood, appeals of the final rule will place many of the same legal challenges before the D.C. Circuit again.

The June 9 opinion rejected the petitioners’ three arguments that the D.C. Circuit has jurisdiction over a challenge to a proposed rule. First, Murray Energy petitioned the court for an extraordinary writ under the All Writs Act. The court recognized that companies may be incurring costs in anticipation of the final Clean Power Plan, but this fact alone was not enough to persuade the court that it should blaze a new trail and review a proposed agency action. Judge Karen LeCraft Henderson wrote a concurrence, separating herself from the majority opinion’s description of the court’s authority under the All Writs Act. Although Judge Henderson agreed with the rest of the panel that the court should not issue a writ of prohibition, she said that the D.C. Circuit had jurisdiction over Murray Energy’s writ petition.

Second, the panel disagreed with the petitioners’ position that EPA’s public statements about the agency’s legal authority to regulate greenhouse gas emissions from utilities constitute a final agency action. Finally, the court found that the petitioner-states did not have standing to challenge the settlement agreement EPA entered into with a number of other states. The settlement agreement only set a timeline for EPA to decide whether to regulate carbon emissions from existing power plants, so the petitioning states were not injured by the agreement. The court also found that the states’ challenge to the settlement agreement was untimely.