On Demember 14, 2012, The United States Court of Appeals for the D.C. Circuit dismissed an extraordinary appeal of proposed EPA New Source Performance Standards (“NSPS”) for greenhouse gas emissions from new coal-fueled electric generating units. The appeal of the proposed standards was taken by a group of companies seeking to develop new coal-fueled generation and by the Utility Air Regulatory Group. The appeal was extraordinary because normally those affected by a rule must await publication of the final rule before appealing. The Court agreed, dismissing the appeal on the ground that the appeal of proposed rules was premature. The appellants had argued that the Court should hear the appeal on the ground that the proposed standards have immediate legal effect because, under the Clean Air Act, an NSPS is effective on proposal in the sense that a developer commencing construction while an NSPS is proposed but not yet final must comply with the proposed NSPS.
The Court’s action will not affect potential appeals of the NSPS when the rule is finalized. EPA has set no specific time for finalizing the rule. Under the Clean Air Act, however, EPA is required to finalize an NSPS within one year after proposal, which would be on April 12, 2013.
A copy of the order is available here.