The Wall Street Journal’s editorial writers have gone all aflutter over a flaky lawsuit to stop EPA from putting limits on the two billion tons of carbon pollution pouring from the nation’s power plants. The suit was brought by Murray Coal, whose colorful President and CEO, Robert Murray, recently said that anyone expecting the recovery of U.S. coal markets is “smoking dope.” That’s an apt description of anyone, Wall Street Journal included, who expects this lawsuit to succeed.
Despite three Supreme Court decisions solidifying EPA’s authority under the Clean Air Act to curb carbon pollution, Murray makes a far-fetched claim that EPA is legally barred from setting power plant standards. The Journal seizes on a small procedural step – the federal appeals court in Washington asked EPA to file a brief in response to Murray’s suit – as a sign that the court is about to reject EPA’s authority.
Not gonna happen.
Murray’s first problem is that it has sued EPA before the agency has issued a final decision. As I’ve written here and here, it’s fundamental that you cannot take an agency proposal to court. You have to wait for “final agency action.” The court of appeals tossed a similarly premature suit against EPA’s proposed standard for new power plants in 2012. In a two-paragraph ruling dismissing a case called Las Brisas Energy Center v. EPA, the court succinctly stated: “The challenged proposed rule is not final agency action subject to judicial review.”
Notably, in Las Brisas the court reached its decision after allowing both sides (and environmental intervenors) to file legal briefs. It took most of a year, but the outcome was never in doubt. The same will be true here. Murray will lose, because its suit is premature.
If Murray relaunches this lawsuit after EPA issues its final standards next June, the company will still lose – this time on the merits. As my colleague Ben Longstreth and I have shown, Murray’s argument (also being made by 11 state attorneys general and some others) hasn’t a leg to stand on. Briefly, Murray contends that EPA cannot set limits on power plant carbon pollution under one part of the Clean Air Act (section 111(d)) because the agency has already set limits on power plant mercury pollution under another part (section 112). That’s nonsensical, and it won’t fly under the terms, the structure, or the purpose of the Clean Air Act. Read why here and here.
I don’t mind if the Journal editorial writers delude themselves. But don’t you be fooled.