The Anti-EPA Lawsuit That Was Thrown Out May Be Seen Again

Murray Energy CEO Bob Murray and his coalition of the willing had their lawsuit against the Environmental Protection Agency (EPA) thrown out because the regulations challenged in the lawsuit had not been finalized or implemented yet. There was no injury to form the basis of a legal complaint.

Murray's coalition is attempting to file their challenge again, however, by asking the Court of Appeals to reconsider the decision to throw the lawsuit out.

Just over a month after the Court of Appeals for the District of Columbia threw out a previous lawsuit challenging the Environmental Protection Agency’s proposed rule, West Virginia Attorney General Patrick Morrisey is leading the charge for another hearing; this time by the full, 17-judge D.C. Court of Appeals, rather than the three-judge panel that heard it in June.

The three-judge panel dismissed the lawsuit because the rule, which aims to reduce emissions from U.S. power plants by 30 percent from 2005 levels by 2030, isn’t finalized yet.

Unless the EPA's clean power regulations are finalized and coded into law before the full Court of Appeals hears the case again (if it hears the case), it seems very unlikely to me the court would reverse the decision.

For their part, the new coalition of complainants are arguing that the possible existence of regulations is the injury.

“The EPA is unlawfully coercing Oklahoma and other states into complying with the Clean Power Plan before the rule is even finalized,” said Oklahoma Attorney General Scott Pruitt in a statement Friday. “Waiting until the rule is finalized before a court can rule on its lawfulness will force states like Oklahoma into making policy decisions on power generation and distribution that will be irreversible.”

That seems like a stretch.

If neither the court or the states know what the exact language of the regulations will be, how can they claim they're being forced to comply with the unwritten language?

  • Christopher Foxx

    There was no injury to form the basis of a legal complaint

    I get that, but that aspect always puzzles me. Consequences are foreseeable. (Sure, not all of them. There are, of course, always the unforeseen ones. But some certainly are.) So to tell folks they can’t even make a complaint, can’t try to head a potential disaster off until after they’ve actually been injured seems ridiculous to me.

    It’s like telling someone nothing can be done about that rotting tree in the neighbors yard that’s leaning toward your house. “Sorry, you haven’t actually been injured yet. You have to wait until it falls on your house and actually crushes your kids before you have basis for a complaint.”

    UPDATE TO ADD: OK, reading it again. Is it just because the regulation isn’t finalized so the actual language isn’t known that makes a suit at this juncture premature? Could they file a suit once the rule IS final, but not yet implemented? Does it actually have to be “finalized and implemented“?

  • muselet

    Interestingly, the Washington Post blew those fourteen states’ argument to flinders on Thursday:

    … Kentucky’s government and electric utilities have quietly positioned themselves to comply with the rule — something state officials expect to do with relatively little effort.

    In this coal-industry bastion, five of the state’s older coal-burning power plants were already scheduled to close or switch to natural gas in the next two years, either because of aging equipment or to save money, state officials say. As a result, Kentucky’s greenhouse-gas emissions are set to plummet 16 percent below where they were in 2012 — within easy reach of the 18 percent reduction goal proposed by the Environmental Protection Agency in a draft of the agency’s controversial carbon-cutting plan.

    “We can meet it,” Kentucky Energy and Environment Secretary Leonard Peters, speaking at a climate conference, said of the EPA’s mandate.


    But despite dire warnings and harsh political rhetoric, many states are already on track to meet their targets, even before the EPA formally announces them, interviews and independent studies show.


    “It’s frankly the norm,” said Malcolm Woolf, a former Maryland state energy official and now senior vice president for Advanced Energy Economy, an industry association that includes electricity providers and major manufacturers. While some power companies have logistical concerns about meeting the EPA’s targets, Woolf said, “we’ve yet to find a state that is going to have a real technical challenge meeting this.”

    Chicken Little had more credibility than Patrick Morrisey and his running buddies.


    • JMAshby

      As with just about every legal complaint filed by Republicans over the past 5 years, it’s a proxy for opposing Obama and a states’ right battle-cry.