On December 13, 2012, the United States Court of Appeals for the District of Columbia Circuit dismissed as premature a challenge to the Environmental Protection Agency’s (EPA’s) proposed rules for limiting emissions of greenhouse gases from new fossil-fuel power plants. With certain exceptions, the New Source Performance Standards (NSPS) proposed under Section 111 of the Clean Air Act would, if finalized, limit emissions from certain fossil-fuel power plants for which construction began after April 13, 2012. The limit would be 1,000 pounds of carbon dioxide emissions per megawatt-hour, calculated over a rolling 12-month period. Several power companies argued that the draft standards should be subject to judicial review because they have the effect of forcing covered facilities that began construction after April 13, 2012, to take steps toward complying with the proposed rule, even if the rule is ultimately never finalized. However, the Court held that the draft NSPS could not be subject to judicial review because it is not a final agency action. Consequently, the power companies can request a rehearing or simply wait until April 2013, when the EPA must finalize the NSPS, to challenge the final rule.

To read the Court order, please see Las Brisas Energy Center, LLC v. EPA.

Jeff Gracer (Partner at Sive, Paget & Riesel, New York)