Two Strikes And Oklahoma's Out (For Now): Another Challenge To The Clean Power Plan Is Rejected


On Friday, Judge Claire Eagan dismissed Oklahoma's latest challenge to EPA's Clean Power Plan. Yes, that plan. The one that hasn't been promulgated yet.

Following rejection by the D.C. Circuit Court of Appeals of a prior law suit, Oklahoma tried again, this time on what it presumably hoped would be more friendly ground, the Northern District of Oklahoma. Not so much.

At this point, Oklahoma was facing a judge who knew that the D.C. Circuit had already concluded that EPA has not yet taken final agency action. Moreover, district courts have no jurisdiction to hear challenges to EPA Clean Air Act rulemaking. Oklahoma tried to get around all this by arguing that EPA's action in proposing the rule was ultra vires, justifying immediate suit in the District Court. I don't think so. Even if EPA's authority is questionable - an issue that will obviously be litigated when the final rule is promulgated - there's a big difference between being wrong and acting ultra vires.

As Judge Eagan noted:

Plaintiffs' claims are exaggerated. The D.C. Circuit noted that the EPA is expected toannounce a final rule this summer, and there is no reason to believe that plaintiffs will have to wait for long...

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