Clean Power Plan Foes Batting 0 for 6 in the Courts

It is becoming increasingly clear that foes of the Clean Power Plan have no more regard for our judicial system than for the health and welfare of American families. Since 2012, they have clogged the federal courts with six frivolous lawsuits against the Environmental Protection Agency's proposals to clean up the nation's power plants--the largest source of the carbon pollution that drives dangerous climate change. The latest suit, brought by the attorney general of Oklahoma, was tossed out of court last Friday. The polluters and their allies are now batting 0 for 6.

Update Aug. 24: Tenth Circuit Court of Appeals rejects Oklahoma AG's appeal. Clean Power Plan foes now batting 0 for 7.

These suits ran afoul of a fundamental principle of administrative law: federal courts may only review final agency regulations, not proposals. It is not until an agency takes "final action" that any requirements or obligations take effect. And it is only when an agency takes a "final action" that someone can challenge it in the federal courts. In short, the courts don't get involved until the agency has finished its job.

Despite these clear principles of administrative law, the polluters and their allies have repeatedly tried to get the courts to weigh in on proposed power plant carbon pollution standards that EPA is still working on. In Las Brisas Energy Center, LLC v. EPA in 2012, power companies prematurely challenged EPA's proposed carbon standards for new plants. The Nebraska Attorney General tried the same thing in Nebraska v. EPA in 2014. And in three more cases filed last year (In re: Murray Energy, West Virginia v. EPA, and Murray Energy v. EPA), polluters and their state allies challenged the proposed Clean Power Plan for existing plants.

The courts dismissed all five of these cases as premature for lack of any final agency action to review. In addition, the courts dismissed cases brought outside Washington for a second reason: under the Clean Air Act the U.S. Court of Appeals for the District of Columbia Circuit has exclusive jurisdiction to hear all challenges to final EPA standards of national scope, including these power plant rules, albeit only when they are final.

Undeterred by this string of losses, the polluters and their allies tried to go after the Clean Power Plan again. On July 1st, Oklahoma Attorney General Scot Pruitt - represented by a private law firm with close ties to the energy industry and a leading conservative lawyer in unsuccessful challenges to Obamacare - brought lawsuit number six in the District Court in Tulsa. (For more on the "unprecedented, secretive alliance" between Oklahoma's Attorney General and fossil fuel interests, see this New York Times article). Repeating many of the same losing arguments advanced in the D.C. Circuit, Oklahoma asked the Tulsa district court to step in and stop the Clean Power Plan rulemaking.

Judge Eagen, appointed by George W. Bush in 2001, wasn't having it. She dismissed the case in just 18 days, ruling that Oklahoma's attack on the Clean Power Plan proposal failed for lack of any final agency action. In addition, any challenge to the final plan, the judge wrote, "must be decided by the court with exclusive jurisdiction over these matters, and that court is the D.C. Circuit." Finally, she found Oklahoma's claims "exaggerated." Despite all the hoopla, Oklahoma failed to show that the Plan conflicted with any "clear and mandatory" limit on EPA's authority.

Update July 23: Yesterday the Oklahoma Attorney General appealed his latest loss to the Tenth Circuit Court of Appeals. Apparently he thinks the opportunity for another press release is worth extending his losing streak to 0 for 7!

There are two important takeaways from the Oklahoma case. First, the polluter coalition wasn't joking when it said it planned to use litigation to "gum up the works." This pattern of abusive litigation is part of a calculated political strategy to harass and oppose any effort to clean up the power plant pollution driving dangerous climate change. We should expect more such frivolous lawsuits. But this strategy will fail.

Second, Clean Power Plan foes are trying to make far-fetched statutory and constitutional arguments seem weighty simply by repeating them as often and as loudly as possible. But the Supreme Court has already ruled that the EPA has the authority and responsibility to address dangerous carbon pollution from power plants. The Oklahoma Attorney-General and his big private law firm trotted out all of these arguments in Tulsa, but like the judges in the other five cases, Judge Eagen wasn't persuaded. Their inability to persuade the courts that the Clean Power Plan violates any "clear and mandatory" limits suggests that their attacks will keep falling flat.

This post co-authored with David Baake.