Imagine a sporting event—basketball, rugby, quidditch, you name it—during which one side tries to declare victory because an argument is taking place.
That’s more or less what’s going on with dual lawsuits being pressed by West Virginia’s attorney general and by Murray Energy Corporation against the EPA’s proposed Clean Power Plan. Of course it’s no mere sporting event we’re talking about because the stakes in these cases are so high. The agency’s plan entails modernizing enforcement of the Clean Air Act by shoring up state-by-state emission controls that protect the public from the ill effects of pollution, especially from coal-fired power plants.
The plaintiffs want the referees to blow the whistle and call the rulemaking process off entirely—even before the EPA has evaluated the more than four million comments it has received on the proposal. What Murray and West Virginia Attorney General Patrick Morrisey seek, frankly, is for somebody to declare the coal industry victorious without allowing the agency to complete the process mandated by the Administrative Procedures Act.
Remarkably, a panel of judges on the U.S. Court of Appeals for the D.C. Circuit agreed to take the case and earlier this month heard oral arguments from both sides. It was an unusual development, to say the least, because inclusion and public participation are intended to inform federal rulemaking. By tradition and in the service of fairness, the “game” is allowed to unfold. Litigation—if and when it’s filed—comes after rules are finalized (finalization creates a common reference point from which argument can occur).
Rather than letting the process happen as intended, however, Murray Energy, the biggest privately held coal producer in the U.S., jumped the gun in a brief filed in February that said the Clean Power Plan should be stopped before it’s even written.
Here’s part of the company’s lament:
“The mere pendency of the proposed rule causes immediate harm because coal producers and utility customers must make—and are making—current business decisions now. EPA’s pursuit of this rulemaking continues to pressure states and capital markets to dismantle Murray Energy’s customer base.”
Morrissey waded into the fray later.
Astute commentators have noted the potential havoc and public policy damage that could ensue if the court were to rule in favor of the plaintiffs. Could any industry (or disgruntled stakeholder party, for that matter) interfere with agency rulemaking by asserting that it doesn’t like what’s being discussed?
It’s a good sign that the court wondered whether a ruling in favor of the plaintiffs could open a floodgate of premature challenges to proposed regulations of all kinds. Neither West Virginia nor Murray Energy could site a single instance in which the courts have weighed in on a proposed rule.
The appeals court should by no means grant the plaintiffs what they seek, a plain affront to participatory government. And thankfully, it’s unlikely to do so because federal rulemaking deserves protection from industries that prefer to stifle free and fair debate.
Lisa Anne Hamilton is an IEEFA regulatory consultant.