CEI’s William Yeatman on the Murray Energy Challenge to the Clean Power Plan
Today the oral argument in the Murray Energy case against the Environmental Protection Agency (EPA) took place before the U.S. Court of Appeals for the District of Columbia. CEI's William Yeatman gave the following comments about the case:
Statement by CEI senior fellow William Yeatman
"This is the little lawsuit that could. Admittedly, it faces long odds, as the petitioners are litigating a proposed rule, and the D.C. Circuit Court only has jurisdiction to review final agency rules (in normal circumstances). This is why the Natural Resources Defense Council (NRDC) called the complaints 'laughable' and 'lame' early on. Yet the case survived EPA’s first request to have it dismissed, and it has now proceeded to full briefing and oral argument. Indeed, NRDC has intervened and submitted briefs on the EPA’s behalf; presumably NRDC no longer believes the case to be 'laughable.'
“No doubt jurisdictional concerns will be front and center during oral arguments on Thursday. In making the case that the court has jurisdiction to hear their challenge, Murray Energy and the interveners on their behalf advance two premises: First, that EPA doesn’t have the authority to issue the Clean Power Plan (CPP) to begin with. Second, that state regulators and utilities have no choice but to start complying with the proposed Clean Power Plan now, because they are capital-intensive businesses that must plan years in advance.
“Against the legal and factual background, the petitioner invokes the All Writs Act, an 18th century law that empowers federal courts to issue ‘necessary and appropriate’ injunctions where ‘gaps’ in a statutory scheme pervert the ends of justice. In this instance, the ‘gap’ in the Clean Air Act’s regulatory scheme is caused by the fact that states and utilities have to start spending considerable resources planning for a proposed mandate—the Clean Power Plan—that the EPA doesn’t have the power to issue. While it’s true that federal courts have exercised this authority very rarely, it is no less true that the proposed Clean Power Plan represents a casus omissus—the extraordinary, unprovided-for case—for which an All Writs Act injunction is properly issued by an Article III court.”
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