U.S. Court Of Appeals Throws Out EPA Challenge On Clean Power Plan

Jun 9, 2015

The U.S. Court of Appeals for the District of Columbia threw out a challenge to the Environmental Protection Agency’s controversial Clean Power Plan by attorneys general in several states, including Arkansas.

The court said Tuesday that the plaintiffs’ lawsuit was prematurely filed before the federal agency had drafted final rules.

“After EPA issues a final rule, parties with standing will be able to challenge that rule in a pre-enforcement suit, as well as to seek a stay of the rule pending judicial review,” the three-judge federal panel stated in its 19-page ruling. “At that time (which will not be very long from now, according to EPA), the Court will have an opportunity to review the legality of the rule.”

In August 2014, a dozen states originally filed an initial lawsuit to challenge the EPA regulation would cut existing power-plant carbon emissions from 2005 levels by 30% by 2030. Those states include West Virginia, Alabama, Alaska, Indiana, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Dakota, Wyoming and Kentucky. West Virginia led a group of states in one lawsuit and is an intervener in the other lawsuit.

Ted Thomas, chairman of the state Public Service Commission, told Talk Business & Politics on Tuesday that federal environmental officials have told state officials that they expect to issue final draft rules on the EPA’s draft 111(d) rule by mid-August.

Arkansas Attorney General Leslie Rutledge speaking at an EPA hearing in February in Washington, DC.
Credit oversight.house.gov/

In February, Arkansas Attorney General Leslie Rutledge filed a motion to intervene in a federal lawsuit against the Environmental Protection Agency’s (EPA) proposed 111(d) rule. That motion was granted in early March, allowing Arkansas to join West Virginia and the other 11 states in the case.

In its ruling, the federal court of appeals stated that the petitioners in the case advanced three different arguments to halt EPA from issuing a final ruling limited carbon emissions at existing, coal fired plants, but “none (were) persuasive.”

“In effect, petitioners are asking us to review the legality of a proposed EPA rule so as to prevent EPA from issuing a final rule,” the ruling stated. “But as this Court has stated, a proposed EPA rule is not final agency action subject to judicial review.’”

However, the court did leave the door open that it may take a look at the issue again, once the final rules are in place. “We may review final agency rules,” the court stated. “But we do not have authority to review proposed rules.”

Rutledge expressed disappointment with the court’s decision.

“While I am disappointed with the court’s ruling today, it does not change that the rule is an egregious overstep that will cost Arkansas jobs and the potential for economic growth,” said Rutledge. “As Attorney General, I am committed to taking all available action to stop an overreaching EPA. Procedural hurdles like this instance will occur, but it should be noted that today’s ruling from the court says nothing about the legality of the EPA’s rule. The court indicates that the final rule is now imminent, and I stand ready to join attorneys general from across the country to protect our States.”


The Arkansas chapter of The Sierra Club, mocked Arkansas Attorney General Leslie Rutledge and other state attorneys general for bringing the federal lawsuit before the final rules were drafted.

“Today’s federal court ruling could have been predicted by a first-semester law school student. Attorney General Leslie Rutledge chose to challenge a draft form of the Clean Power Plan, choosing for her own political reasons to not even wait until the plan was final before suing,” said Glen Hooks, director of the Arkansas Sierra Club. “Challenging a rule that is not even past the draft stage is frivolous and an utter waste of Arkansas taxpayer resources. The Court was exactly right in dismissing the challenge as premature.”


PSC Chair Thomas said this week that he and Arkansas Department of Environmental Quality (ADEQ) Director Becky Keogh have had conversations with Gov. Asa Hutchinson concerning the EPA rule since comments were submitted to federal officials in December following several stakeholder meetings called by former Gov. Mike Beebe.

Although no consensus was reached during several panel meetings held over the summer, the ADEQ and PSC submitted a letter to the EPA on Nov. 26 that largely supports delaying the EPA proposed greenhouse gas rules. The letter, written and signed by former ADEQ interim director J. Ryan Benefield and past PSC Chairman Colette Honorable, said the EPA’s proposed rule would give Arkansas “one of the most stringent goals in the country for reducing the rate of carbon emissions from its electric generating units.”

Thomas said he expects the EPA final rules to land between Aug. 1 and Aug. 15. He said once a final EPA rule is issued in 2015 and it has been reviewed, the ADEQ and APSC will restart the meetings with stakeholder groups to develop a state implementation plan that would then be submitted to the EPA for approval.

“We are in holding pattern now until we get final rules,” said Thomas, who was appointed to his post in January. “The process will begin again once we get a final rule. We have discussed it with the governor and there is legislation (Act 382) that essentially mandates that we submit a plan, or decide whether to file a plan or not.”

Act 382, which was passed by lawmakers during the 90th General Assembly, also gives the legislature an opportunity to review and approve a state plan before it is submitted to the EPA. It also calls for a rate impact and economic development assessment on the EPA plan to see if the shutdown of the state’s coal-fired power plants would significantly raise electricity rates.

However, the regulations also give Gov. Hutchinson the power to submit a state plan to the EPA if lawmakers fail to approve a plan, meet the federal deadline, or he feels that failure to do so will affect Arkansas ratepayers.