The 1,984 megawatt Harrison Power Station in Hayward, West Virginia.
The decision announced Tuesday was pretty much expected. Three conservative judges on the U.S. Court of Appeals for the D.C. Circuit
rejected a lawsuit challenging the Environmental Protection Agency's proposed rules to curb greenhouse gas emissions from fossil fuel power plants.
The reason, the judges stated, was because the rules are not yet finalized:
“They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule,” Judge Brett Kavanaugh wrote in the opinion. “But a proposed rule is just a proposal. In justiciable cases, this Court has authority to review the legality of final agency rules. We do not have authority to review proposed agency rules.”
“Do you know of any case when we have stopped rule-making? Why would we do that?” Judge Thomas Griffith asked Elbert Lin, an attorney for West Virginia, during the proceedings in April.
Under a 2007 Supreme Court ruling, the EPA is not merely allowed but also required by the Clean Air Act to regulate greenhouse gases if they are a menace to public health, which they are. The most important proposed rule of the Clean Power Plan is designed to cut nationwide carbon dioxide emissions from existing power plants to 30 percent of their 2005 level by 2030. The other two rules govern emissions from new and modified power plants. The EPA has given states flexibility in putting together individual plans to meet their portion of the agency's overall goals. Those states that refuse to come up with their own plans will have one imposed on them. The EPA is expected to announce its regulations on how that is accomplished sometime this summer.
The lawsuit rejected Tuesday was brought by 15 coal-mining states and Murray Energy—one of the nation's largest independent coal operators with a record of accidents, including fatalities, a boatload of violations of federal rules, and a climate-change-denying CEO in charge.
While spokespersons for environmental advocates, such as the Environmental Defense Fund, counted the judges' decision as an important victory, the fight is far from over. An onslaught of lawsuits can be expected when the rules are finalized.
And, as Ryan Koronowski at ThinkProgress reported Monday, foes of the rule are doing everything they can think of to block the rules besides lawsuits: federal legislation, budget cuts, and dozens of bills in state legislatures designed to prevent cooperation with the Clean Power Plan.
Myopia is one term for this. Ignorance, greed, and Obama Derangement Syndrome are others. This at a time when news about accelerated effects from climate change and lower costs and faster installations of renewable energy sources are almost daily in the news.