Murray Energy Corp. v. Environmental Protection Agency

Opinion for the Court filed by Circuit Judge KAVANAUGH, with whom Circuit Judge GRIFFITH joins. Opinion concurring in the judgment filed by Circuit Judge HENDERSON. KAVANAUGH, Circuit Judge: 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 [403] 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 agency rules. In short, we deny the petitions for review and the petition for a writ of prohibition because the complainedof 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 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 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 (i) that reason, petitioners ask the Court to enjoin EPA from issuing a final rule limiting those carbon dioxide emissions. In effect, petitioners are asking us to review the legality of a proposed EPA rule so as to prevent EPA from issuing a final rule. But as this Court has stated, a proposed EPA rule “is not final agency action subject to judicial review.” Las Brisas Energy Center, LLC v. EPA, No. 12-1248, 2012 WL 10939210 (D.C.Cir. 2012). We may review final agency rules. See generally Abbott Laboratories v. Gardner, 387 U.S. 136, 149-52, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). But we do not have authority to review proposed rules. See 42 U.S.C. § 7607(b)(1) (Clean Air Act) (“A petition for review of action of the Administrator in promulgating ... any standard of performance or requirement under section 7411 of this title ... or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter may be filed....”); of. 5 U.S.C. § 704 (Administrative Procedure Act) (“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.”). Proposed rules meet neither of the two requirements for final agency action: (i) They are not the “consummation of the agency’s decisionmaking process,” and (ii) they do not determine “rights or obligations,” or impose “legal consequences.” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal quotation marks omitted); see also American Portland Cement Alliance v. EPA, 101 F.3d 772, 777 (D.C.Cir.1996) (“a proposed regulation is still in flux,” so “review is premature”) (internal quotation marks omitted); Action on Smoking and Health v. Department of Labor, 28 F.3d [404] 162, 165 (D.C.Cir.1994) (“Agency action is final when it imposes an obligation, denies a right, or fixes some legal relationship,” and an agency’s “proposed rulemaking generates no such consequences.”) (internal quotation marks omitted). In an attempt to clear this hurdle to their suit, petitioners advance three different arguments. None is persuasive. First, petitioners contend that this Court has authority under the All Writs Act to consider their challenge now, even before EPA issues a final rule. The All Writs Act provides that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). Although “the All Writs Act authorizes employment of extraordinary writs, it confines the authority to the issuance” of writs “in aid of the issuing court’s jurisdiction.” In re Tennant, 359 F.3d 523, 527 (D.C.Cir.2004) (internal quotation marks omitted). In this case, a writ is not necessary or appropriate to aid the Court’s jurisdiction. After EPA issues a final rule, parties with standing will be able to challenge that rule in a pre-enforcement suit, as well as to seek a stay of the rule pending judicial review. At that time (which will not be very long from now, according to EPA), the Court will have an opportunity to review the legality of the rule. Petitioners contend, however, that we should consider their challenge now because they are already incurring costs in preparing for the anticipated final rule. And petitioners say that the Court will not be able to fully remedy that injury if we do not hear the case at this time. But courts have never reviewed proposed rules, notwithstanding the costs that parties may routinely incur in preparing for anticipated final rules. We recognize that prudent organizations and individuals may alter their behavior (and thereby incur costs) based on what they think is likely to come in the form of new regulations. But that reality has never been a justification for allowing courts to review proposed agency rules. We see no persuasive reason to blaze a new trail here. In short, the All Writs Act does not authorize a court to circumvent bedrock finality principles in order to review proposed agency rules. See Pennsylvania Bureau of Correction v. U.S. Marshals Service, 474 U.S. 34, 43, 106 S.Ct. 355, 88 L.Ed.2d 189 (1985) (All Writs Act “does not authorize” courts “to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate”); Schlagenhauf v. Holder, 379 U.S. 104, 110, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) (“It is, of course, well settled” that a writ “is not to be used as a substitute for appeal, even though hardship may result from delay.”) (internal citation omitted). Second, petitioners argue that EPA’s public statements about its legal authority to regulate carbon dioxide emissions constitute final agency action subject to judicial review. As petitioners correctly note, EPA has repeatedly and unequivocally asserted that it has authority under Section 111(d) to restrict carbon dioxide emissions from existing power plants. EPA has made such statements in the preamble to the proposed rule, in a legal memorandum accompanying the proposed rule, and in other public remarks discussing the proposed rule. See, e.g., 79 Fed. Reg. at 34,853. But those EPA statements are not final agency action. As noted above, to be final an agency action must meet two requirements. First, the agency action must constitute “the consummation of the agency’s decisionmaking process.” Bennett, 520 [405] U.S. at 177-78, 117 S.Ct. 1154 (internal quotation marks omitted). Second, the agency action must be one “by which rights or obligations have been determined, or from which legal consequences will flow.” Id. (internal quotation marks omitted). Here, neither of those standard finality requirements is met. In the context of an ongoing rulemaking, an agency’s statement about its legal authority to adopt a proposed rule is not the “consummation” of the agency’s decision-making process. Formally speaking, such a statement is a proposed view of the law. Indeed, EPA recognized as much in this instance when it asked for “further input through public comment on all aspects” of the agency’s proposal. 79 Fed.Reg. at 34,-835 (emphasis added). Put simply, the consummation of the agency’s decision-making process with respect to a rule occurs when the agency issues the rule. Moreover, even if EPA’s position on its legal authority is set in stone, the agency’s statements about its legal authority — unconnected to any final rule or other final agency action — do not impose any legal obligations or prohibitions on petitioners. Any such legal obligations or prohibitions will be established, and any legal consequences for violating those obligations or prohibitions will be imposed, only after EPA finalizes a rule. In short, EPA’s statements about its legal authority under Section 111(d) meet neither of the requirements for final agency action. Third, no doubt recognizing the problems with their attempt to challenge a proposed rule (including the lack of precedent supporting judicial review of a proposed rule), the State petitioners separately challenge a 2011 settlement agreement that EPA reached with several other States and environmental groups. By challenging that settlement agreement, the State petitioners hope to obtain a backdoor ruling from the Court that EPA lacks legal authority under Section 111(d) to regulate carbon dioxide emissions from existing power plants. But the settlement agreement did not obligate EPA to issue a final rule restricting carbon dioxide emissions from existing power plants. It simply set a timeline for EPA to decide whether to do so. As our precedent makes clear, a settlement agreement that does nothing more than set a timeline for agency action, without dictating the content of that action, does not impose an injury in fact on entities that are not parties to the settlement agreement. See Defenders of Wildlife v. Perciasepe, 714 F.3d 1317, 1324-25 (D.C.Cir.2013). State petitioners therefore lack standing to challenge the settlement agreement. Moreover, State petitioners’ challenge to the settlement agreement is untimely. They had to file suit within 60 days after EPA published notice of the settlement agreement in the Federal Register. See 42 U.S.C. § 7607(b)(1). They did not file suit until 2014, more than two years after publication. * * * We deny the petitions for review and the petition for a writ of prohibition. So ordered.