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DC Court Tosses Challenge to Obama's Proposed Clean Power Plan

A federal court on Tuesday threw out a lawsuit by 14 states and several coal companies that are attempting to block one of President Obama's signature issues: reducing greenhouse gas (GHG) emissions from power plants.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously agreed that it was unprecedented to review rules that were in draft form.

Two years ago the U.S. Environmental Protection Agency (EPA) was charged to work with states, industry and stakeholders to establish carbon pollution standards for new, existing and modified power plants (see Daily GPI, June 26, 2013). EPA issued three proposals for operating, new and modified power plants over the course of a year (see Daily GPI, June 2, 2014; Sept. 23, 2013).

The proposed 645-page Clean Power Plan Proposed Rule aims to reduce carbon emissions from the power generation sector 30% below 2005 levels by 2030, a move cautiously embraced by the natural gas industry and derided by critics (see Daily GPI, Dec. 4, 2014).

A coalition of states and coal generators launched a legal challenge, claiming the rules would lead to job losses, shutter hundreds of coal-fired plants, freeze future plant construction and slow coal demand (see Daily GPI, Aug. 4, 2014).

However, the rules can't be challenged because they aren't final, the justices said.

"Petitioners are champing at the bit to challenge EPA's anticipated rule restricting carbon dioxide emissions from existing power plants," said Judge Brett Kavanaugh in the written opinion. "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."

An EPA spokeswoman said the court had "confirmed our assessment" that a challenge was premature.

However, Sen. Jim Inhofe (R-OK), chair of the Environment and Public Works Committee, called the court's decision "a short-lived, technical obstacle to overturning the president's economically disastrous Clean Power Plan. The president's rushed timeline is already forcing states to spend resources  on a rule that will ultimately fail. I have no doubt that once the proposal is finalized and the courts can get to the merits of the case, it will be overturned."

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