Murray Energy Corp. v. Envtl. Prot. Agency
| Decision Date | 09 June 2015 |
| Docket Number | Nos. 14–1112,14–1151,14–1146.,s. 14–1112 |
| Citation | 788 F.3d 330 |
| Parties | In re MURRAY ENERGY CORPORATION, Petitioner State of West Virginia, et al., Petitioners v. Environmental Protection Agency, Respondent City of New York, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Elbert Lin, Solicitor General, Office of the Attorney General for the State of West Virginia, argued the cause for Petitioner–Intervenors States. With him on the briefs were Patrick Morrisey, Attorney General, Misha Tseytlin, General Counsel, J. Zak Ritchie, Assistant Attorney General, Luther Strange, Attorney General, Office of the Attorney General for the State of Alabama, Andrew Brasher, Solicitor General, Craig W. Richards, Attorney General, Office of the Attorney General for the State of Alaska, Steven E. Mulder, Senior Assistant Attorney General, Gregory F. Zoeller, Attorney General, Office of the Attorney for the State of Indiana, Timothy Junk, Deputy Attorney General, Derek Schmidt, Attorney General, Office of the Attorney General for the State of Kansas, Jeffrey A. Chanay, Deputy Attorney General, Jack Conway, Attorney General, Office of the Attorney General for the Commonwealth of Kentucky, Doug Peterson, Attorney General, Office of the Attorney General for the State of Nebraska, Blake E. Johnson, Assistant Attorney General, Michael DeWine, Attorney General, Office of the Attorney General for the State of Ohio, Eric E. Murphy, State Solicitor, E. Scott Pruitt, Attorney General, Office of the Attorney General for the State of Oklahoma, Patrick R. Wyrick, Solicitor General, P. Clayton Eubanks, Deputy Solicitor General, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, James Emory Smith, Jr., Deputy Solicitor General, Peter K. Michael, Attorney General, Office of the Attorney General for the State of Wyoming, James Kaste, Deputy Attorney General, Michael J. McGrady, Senior Assistant Attorney General, Jeremiah I. Williamson, Assistant Attorney General, James D. “Buddy” Caldwell, Attorney General, Office of the Attorney General for the State of Louisiana, Megan K. Terrell, Deputy Director, Marty J. Jackley, Attorney General, Office of the Attorney General for the State of South Dakota, and Roxanne Giedd, Deputy Attorney General at the time the brief was filed. C. Joseph Cordi Jr., Senior Assistant Attorney General, Office of the Attorney General for the State of Arkansas, Steven R. Blair, Assistant Attorney General, Office of the Attorney General for the State of South Dakota, Steven B. Jones, Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Daniel P. Lennington, Assistant Attorney General, Office of the Attorney General for the State of Wisconsin, and Katherine Jean Spohn, Deputy Attorney General, Office of the Attorney General for the State of Nebraska, entered appearances.
Geoffrey K. Barnes argued the cause for Petitioner Murray Energy Corporation. With him on the briefs were J. Van Carson, Wendlene M. Lavey, John D. Lazzaretti, and Robert D. Cheren. Rebecca A. Worthington entered an appearance.
Laurence H. Tribe argued the case for Petitioner–Intervenor Peabody Energy Corporation. With him on the briefs were Jonathan S. Massey, Tristan L. Duncan, and Thomas J. Grever.
Robert R. Gasaway, Dominic E. Draye, Allison D. Wood, Tauna M. Szymanski, C. Boyden Gray, and Adam Gustafson were on the briefs for Intervenor–Petitioners National Federation of Independent Business and Utility Air Regulatory Group.
Peter D. Keisler, Roger R. Martella, Jr., C. Frederick Beckner III, Paul J. Ray, Joshua Thompson, Leslie A. Hulse, Linda E. Kelly, Quentin Riegel, Steven P. Lehotsky, Sheldon Gilbert, and Richard Moskowitz were on the briefs for amici curiae Trade Associations and Pacific Legal Foundation in support of petitioners.
Peter S. Glaser and Carroll W. McGuffey were on the brief for amici curiae the National Mining Association and the American Coalition for Clean Coal Electricity.
Brian H. Lynk and Amanda Shafer Berman, Attorneys, U.S. Department of Justice, argued the causes for respondents. With them on the briefs were John C. Cruden, Assistant Attorney General, and Elliott Zenick and Scott Jordan, Attorneys, U.S. Environmental Protection Agency.
Morgan A. Costello, Assistant Attorney General, Office of the Attorney General for the State of New York, argued the cause for Respondent–Intervenors States. With her on the briefs were Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Michael J. Myers and Brian Lusignan, Assistant Attorneys General, Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, David A. Zonana, Acting Supervising Deputy Attorney General, M. Elaine Meckenstock, Elizabeth B. Rumsey, Timothy E. Sullivan, and Raissa Lerner, Deputy Attorneys General, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Kimberly P. Massicotte and Scott N. Koschwitz, Assistant Attorneys General, Matthew P. Denn, Attorney General, Office of the Attorney General for the State of Delaware, Valerie M. Edge, Deputy Attorney General, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Melissa A. Hoffer and Turner Smith, Assistant Attorneys General, Janet T. Mills, Attorney General, Office of the Attorney General for the State of Maine, Gerald D. Reid, Natural Resources Division Chief, Douglas F. Gansler, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Maryland, Mary Raivel, Assistant Attorney General, Hector Balderas, Attorney General, Office of the Attorney General for the State of New Mexico, Tannis Fox, Assistant Attorney General, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Paul Garrahan, Acting Attorney–in–Charge, Peter Kilmartin, Attorney General, Rhode Island Department of Attorney General, Gregory S. Schultz, Assistant Attorney General, William H. Sorrell, Attorney General, Office of the Attorney General for the State of Vermont, Thea Schwartz, Assistant Attorney General, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Leslie R. Seffern, Assistant Attorney General, Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Amy McDonnell, General Counsel, and Carrie Noteboom. Carol A. Iancu, Assistant Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, and Christopher G. King, entered appearances.
Sean H. Donahue argued the cause for Respondent–Intervenors NGOs. With him on the briefs were David Doniger, Benjamin Longstreth, Tomás Carbonell, Vickie Patton, Joanne Spalding, Andres Restrepo, and Ann Brewster Weeks. Megan Ceronsky entered an appearance.
Katherine E. Konschnik was on the brief for amicus curiae Law Professors in support of respondents.
Kevin Poloncarz was on the brief for amicus curiae Calpine Association in support of respondents.
Richard L. Revesz and Denise A. Grab were on the brief for amicus curiae Institute for Policy Integrity at New York University School of Law in support of respondent.
Before: HENDERSON, GRIFFITH, and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge KAVANAUGH, with whom Circuit Judge GRIFFITH joins.
Petitioners are champing at the bit to challenge EPA's anticipated rule restricting carbon dioxide emissions from existing power plants. But EPA has not yet issued a final rule. It has issued only a proposed rule. Petitioners nonetheless ask the Court to jump into the fray now. They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule. 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. In short, we deny the petitions for review and the petition for a writ of prohibition because the complained-of agency action is not final.
* * *
On June 18, 2014, as part of the Executive Branch's efforts to tackle global warming, EPA proposed a rule to restrict carbon dioxide emissions from existing coal-fired and natural gas-fired power plants. See 79 Fed.Reg. 34,830, 34,830 (June 18, 2014). In the preamble to the proposed rule and in other statements about the proposed rule, EPA has explained that Section 111(d) of the Clean Air Act supplies legal authority for EPA to restrict those emissions.See, e.g., id. at 34,852 –53; see also 42 U.S.C. § 7411(d) (codifying Section 111(d) of the Clean Air Act).
EPA published the proposed rule in the Federal Register and invited “further input through public comment on all aspects of this proposal.” Id. at 34,835. The comment period has now closed, and EPA has received over two million comments. EPA has not yet issued a final rule but intends to do so this summer.
Petitioners here are Murray Energy Corporation, which is a coal company whose business would be negatively affected by a restriction on carbon dioxide emissions from coal-fired power plants, and the States of West Virginia, Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and Wyoming. Shortly after EPA issued its proposed rule, petitioners filed suit. According to petitioners, Section 111(d) of the Clean Air Act does not grant EPA authority to limit carbon dioxide emissions from existing power plants. For that reason, petitioners ask the Court to enjoin EPA from issuing a final rule limiting those carbon dioxide emissions.
In effect, p...
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