Court Again Dismisses Clean Power Plan Challenges As Premature

The U.S. Court of Appeals for the District of Columbia Circuit has rejected two lawsuits brought by 15 states and Peabody Energy Corp., which seek to block the EPA's Clean Power Plan. The lawsuits are In re West Virginia, D.C. Cir., No. 15-1277; In re Peabody Energy Corp., D.C. Cir., No. 15-1284. The final Clean Power Plan has not yet been issued, and EPA expects that it will be published in late October. The petitioners requested that the Court issue an extraordinary writ under the All Writs Act to block the final Clean Power Plan, arguing that the rule is illegal on its face. The Court ruled that the petitioners had not met the stringent standards under the All Writs Act. Generally, a rule may not be challenged before the agency publishes the final rule. EPA argued that the All Writs Act did not allow the Court to intervene prior to publication of the final rule and act as a substitute for normal judicial review. This is the second time that the D.C. Circuit dismissed challenges to the Clean Power Plan as premature. The prior...