It’s been said that ‘timing is everything’ and time is just one of the issues at stake in the legal proceedings surrounding the Environmental Protection Agency’s proposed Clean Power Plan, which would regulate carbon emissions from existing power plants. Specifically, the Court must decide if a proposed federal regulation, like the CPP, can be struck down before it is finalized.
In this case, that would be the right decision.
Last month, attorneys on behalf of Murray Energy Corporation and a bipartisan coalition of 15 states argued before the U.S. Court of Appeals District of Columbia Circuit seeking to have the Court dismiss EPA’s plan. One of the arguments made by EPA is that the Court must not dismiss the rule because it is still tentative, could change, and the EPA could still “even withdraw the proposed rule”.
When it comes to the Clean Power Plan, however, the EPA is clearly talking out of both sides of its mouth. As EPA attorneys seek to convince the courts the proposed rule could be influenced or even withdrawn based on the feedback received in the public comment period, EPA officials are blatantly singing another tune.
Just one week prior to the oral arguments before the Court of Appeals, EPA Administrator Gina McCarthy told an energy symposium, “[The Clean Power Plan] is going to happen. We have the legal – not just right and authority but responsibility – to do it.”
In March, McCarthy said, “EPA is going to regulate… If folks are thinking any of these pieces aren’t going to happen – and (the Clean Power Plan) isn’t going to be implemented, I think they need to look at the history of the Clean Air Act more carefully.”
These are hardly the words of an agency that is still making up its mind.
Fortunately, Judge Thomas Griffith seemed to pick up on this during oral arguments, asking the EPA if McCarthy’s remarks suggest that the agency’s comment period is a “sham.” While the EPA argued it wasn’t, the evidence certainly suggests otherwise.

















