On June 9, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) dismissed challenges to the Environmental Protection Agency’s (“EPA”) proposed rule reducing carbon dioxide emission limits from existing power plants (“Proposed GHG Rule”).  In doing so, the D.C. Circuit held that it did not have the authority to review the Proposed GHG Rule because it was still being drafted and, therefore, no final agency action subject to judicial review existed.

In June 2014, EPA issued its Proposed GHG Rule, designed to cut carbon dioxide emission from existing power plants by up to 30 percent by 2030, compared to 2005 levels.  In the Proposed GHG Rule, EPA cited section 111(d) of the Clean Air Act (“CAA”) as legal authority to regulate such emissions.  In response, several coal companies and a dozen states (“Petitioners”) challenged the Proposed GHG Rule and EPA’s authority to regulate carbon dioxide from existing power plants.

Petitioners made three separate arguments to the D.C. Circuit.  First, Petitioners argued that the D.C. Circuit maintained authority to review proposed rules under the All Writs Act – a statute that authorizes courts to “issue any writ necessary or appropriate in aid of their respective jurisdiction” – and should issue a writ of prohibition in this instance.  Petitioners argued the writ was necessary to prevent further injury to Petitioners, the likes of which would not be fully remedied if the D.C. Circuit acted after the final rule was issued.  Second, Petitioners argued that EPA’s public statements about its legal authority to regulate carbon dioxide constitute final agency action that could be appealed to the D.C. Circuit.  Third, Petitioners separately challenged a 2011 settlement between EPA and several states and argued that by correctly vacating the settlement, EPA could not regulate carbon dioxide limits from existing power plants under section 111(d) of the CAA.

The D.C. Circuit disagreed with each of the Petitioners’ arguments.  First, the D.C. Circuit stated that “courts have never reviewed proposed rules” and that the All Writs Act does not authorize a court to circumvent “bedrock finality principles in order to review proposed agency rules.”  Second, the D.C. Circuit stated that EPA’s public statements did not constitute final agency action because the statements were not: (1) the consummation of the agency’s decision making process; and (2) ones by which rights or obligations were determined, or from which legal consequences will flow.  Finally, the D.C. Circuit rejected Petitioners challenge to the 2011 settlement because it was not only untimely, but the settlement itself only set a timeline for whether or not the EPA would decide to regulate carbon dioxide from existing power plants.  As a result, the D.C. Circuit determined that the 2011 settlement does not impose an injury on parties outside of the settlement and, therefore, the Petitioners lack standing to challenge the 2011 settlement.

In a concurring opinion, Judge Karen Henderson agreed with Petitioners that the D.C. Circuit could issue a writ of prohibition for a proposed rule under the All Writs Act, but concluded that the issuance of a writ of prohibition was not appropriate in this case.

A copy of the D.C. Circuit’s opinion is available here.