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.
