State of West Virginia v. EPA ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 16, 2015 Decided June 9, 2015
No. 14-1112
IN RE: MURRAY ENERGY CORPORATION,
PETITIONER
Consolidated with 14-1151
On Petition For Writ of Prohibition
and On Petition For Review
No. 14-1146
STATE OF WEST VIRGINIA, ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
CITY OF NEW YORK, ET AL.,
INTERVENORS
On Petition for Review of an Order of the
United States Environmental Protection Agency
2
Elbert Lin, Solicitor General, Office of the Attorney
General for the State of West Virginia, argued the cause for
Petitioner-Intervenors States. With him on the briefs were
Patrick Morrisey, Attorney General, Misha Tseytlin, General
Counsel, J. Zak Ritchie, Assistant Attorney General, Luther
Strange, Attorney General, Office of the Attorney General for
the State of Alabama, Andrew Brasher, Solicitor General,
Craig W. Richards, Attorney General, Office of the Attorney
General for the State of Alaska, Steven E. Mulder, Senior
Assistant Attorney General, Gregory F. Zoeller, Attorney
General, Office of the Attorney for the State of Indiana,
Timothy Junk, Deputy Attorney General, Derek Schmidt,
Attorney General, Office of the Attorney General for the State
of Kansas, Jeffrey A. Chanay, Deputy Attorney General, Jack
Conway, Attorney General, Office of the Attorney General for
the Commonwealth of Kentucky, Doug Peterson, Attorney
General, Office of the Attorney General for the State of
Nebraska, Blake E. Johnson, Assistant Attorney General,
Michael DeWine, Attorney General, Office of the Attorney
General for the State of Ohio, Eric E. Murphy, State Solicitor,
E. Scott Pruitt, Attorney General, Office of the Attorney
General for the State of Oklahoma, Patrick R. Wyrick,
Solicitor General, P. Clayton Eubanks, Deputy Solicitor
General, Alan Wilson, Attorney General, Office of the
Attorney General for the State of South Carolina, James
Emory Smith, Jr., Deputy Solicitor General, Peter K. Michael,
Attorney General, Office of the Attorney General for the State
of Wyoming, James Kaste, Deputy Attorney General,
Michael J. McGrady, Senior Assistant Attorney General,
Jeremiah I. Williamson, Assistant Attorney General, James D.
ABuddy@ Caldwell, Attorney General, Office of the Attorney
General for the State of Louisiana, Megan K. Terrell, Deputy
Director, Marty J. Jackley, Attorney General, Office of the
Attorney General for the State of South Dakota, and Roxanne
3
Giedd, Deputy Attorney General at the time the brief was
filed. C. Joseph Cordi Jr., Senior Assistant Attorney General,
Office of the Attorney General for the State of Arkansas,
Steven R. Blair, Assistant Attorney General, Office of the
Attorney General for the State of South Dakota, Steven B.
Jones, Assistant Attorney General, Office of the Attorney
General for the State of Louisiana, Daniel P. Lennington,
Assistant Attorney General, Office of the Attorney General
for the State of Wisconsin, and Katherine Jean Spohn, Deputy
Attorney General, Office of the Attorney General for the State
of Nebraska, entered appearances.
Geoffrey K. Barnes argued the cause for Petitioner
Murray Energy Corporation. With him on the briefs were J.
Van Carson, Wendlene M. Lavey, John D. Lazzaretti, and
Robert D. Cheren. Rebecca A. Worthington entered an
appearance.
Laurence H. Tribe argued the case for Petitioner-
Intervenor Peabody Energy Corporation. With him on the
briefs were Jonathan S. Massey, Tristan L. Duncan, and
Thomas J. Grever.
Robert R. Gasaway, Dominic E. Draye, Allison D. Wood,
Tauna M. Szymanski, C. Boyden Gray, and Adam Gustafson
were on the briefs for Intervenor-Petitioners National
Federation of Independent Business and Utility Air
Regulatory Group.
Peter D. Keisler, Roger R. Martella, Jr., C. Frederick
Beckner III, Paul J. Ray, Joshua Thompson, Leslie A. Hulse,
Linda E. Kelly, Quentin Riegel, Steven P. Lehotsky, Sheldon
Gilbert, and Richard Moskowitz were on the briefs for amici
curiae Trade Associations and Pacific Legal Foundation in
support of petitioners.
4
Peter S. Glaser and Carroll W. McGuffey were on the
brief for amici curiae the National Mining Association and
the American Coalition for Clean Coal Electricity.
Brian H. Lynk and Amanda Shafer Berman, Attorneys,
U.S. Department of Justice, argued the causes for
respondents. With them on the briefs were John C. Cruden,
Assistant Attorney General, and Elliott Zenick and Scott
Jordan, Attorneys, U.S. Environmental Protection Agency.
Morgan A. Costello, Assistant Attorney General, Office
of the Attorney General for the State of New York, argued the
cause for Respondent-Intervenors States. With her on the
briefs were Eric T. Schneiderman, Attorney General, Office
of the Attorney General for the State of New York, Barbara
D. Underwood, Solicitor General, Steven C. Wu, Deputy
Solicitor General, Michael J. Myers and Brian Lusignan,
Assistant Attorneys General, Kamala D. Harris, Attorney
General, Office of the Attorney General for the State of
California, David A. Zonana, Acting Supervising Deputy
Attorney General, M. Elaine Meckenstock, Elizabeth B.
Rumsey, Timothy E. Sullivan, and Raissa Lerner, Deputy
Attorneys General, George Jepsen, Attorney General, Office
of the Attorney General for the State of Connecticut,
Kimberly P. Massicotte and Scott N. Koschwitz, Assistant
Attorneys General, Matthew P. Denn, Attorney General,
Office of the Attorney General for the State of Delaware,
Valerie M. Edge, Deputy Attorney General, Maura Healey,
Attorney General, Office of the Attorney General for the
Commonwealth of Massachusetts, Melissa A. Hoffer and
Turner Smith, Assistant Attorneys General, Janet T. Mills,
Attorney General, Office of the Attorney General for the State
of Maine, Gerald D. Reid, Natural Resources Division Chief,
Douglas F. Gansler, Attorney General at the time the brief
5
was filed, Office of the Attorney General for the State of
Maryland, Mary Raivel, Assistant Attorney General, Hector
Balderas, Attorney General, Office of the Attorney General
for the State of New Mexico, Tannis Fox, Assistant Attorney
General, Ellen F. Rosenblum, Attorney General, Office of the
Attorney General for the State of Oregon, Paul Garrahan,
Acting Attorney-in-Charge, Peter Kilmartin, Attorney
General, Rhode Island Department of Attorney General,
Gregory S. Schultz, Assistant Attorney General, William H.
Sorrell, Attorney General, Office of the Attorney General for
the State of Vermont, Thea Schwartz, Assistant Attorney
General, Robert W. Ferguson, Attorney General, Office of the
Attorney General for the State of Washington, Leslie R.
Seffern, Assistant Attorney General, Karl A. Racine, Attorney
General, Office of the Attorney General for the District of
Columbia, Amy McDonnell, General Counsel, and Carrie
Noteboom. Carol A. Iancu, Assistant Attorney General,
Office of the Attorney General for the Commonwealth of
Massachusetts, and Christopher G. King, entered
appearances.
Sean H. Donahue argued the cause for Respondent-
Intervenors NGOs. With him on the briefs were David
Doniger, Benjamin Longstreth, Tomás Carbonell, Vickie
Patton, Joanne Spalding, Andres Restrepo, and Ann Brewster
Weeks. Megan Ceronsky entered an appearance.
Katherine E. Konschnik was on the brief for amicus
curiae Law Professors in support of respondents.
Kevin Poloncarz was on the brief for amicus curiae
Calpine Association in support of respondents.
6
Richard L. Revesz and Denise A. Grab were on the brief
for amicus curiae Institute for Policy Integrity at New York
University School of Law in support of respondent.
Before: HENDERSON, GRIFFITH, and KAVANAUGH,
Circuit Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH, with whom Circuit Judge GRIFFITH joins.
Opinion concurring in the judgment filed by Circuit
Judge HENDERSON.
KAVANAUGH, Circuit Judge: Petitioners are champing at
the bit to challenge EPA’s anticipated rule restricting carbon
dioxide emissions from existing power plants. But EPA has
not yet issued a final rule. It has issued only a proposed rule.
Petitioners nonetheless ask the Court to jump into the fray
now. They want us to do something that they candidly
acknowledge we have never done before: review the legality
of a proposed rule. But a proposed rule is just a proposal. In
justiciable cases, this Court has authority to review the
legality of final agency rules. We do not have authority to
review proposed agency rules. In short, we deny the petitions
for review and the petition for a writ of prohibition because
the complained-of agency action is not final.
***
On June 18, 2014, as part of the Executive Branch’s
efforts to tackle global warming, EPA proposed a rule to
restrict carbon dioxide emissions from existing coal-fired and
natural gas-fired power plants. See 79 Fed. Reg. 34,830,
34,830 (June 18, 2014). In the preamble to the proposed rule
and in other statements about the proposed rule, EPA has
7
explained that Section 111(d) of the Clean Air Act supplies
legal authority for EPA to restrict those emissions. See, e.g.,
id. at 34,852-53; see also 42 U.S.C. § 7411(d) (codifying
Section 111(d) of the Clean Air Act).
EPA published the proposed rule in the Federal Register
and invited “further input through public comment on all
aspects of this proposal.” Id. at 34,835. The comment period
has now closed, and EPA has received over two million
comments. EPA has not yet issued a final rule but intends to
do so this summer.
Petitioners here are Murray Energy Corporation, which is
a coal company whose business would be negatively affected
by a restriction on carbon dioxide emissions from coal-fired
power plants, and the States of West Virginia, Alabama,
Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio,
Oklahoma, South Carolina, South Dakota, and Wyoming.
Shortly after EPA issued its proposed rule, petitioners filed
suit. According to petitioners, Section 111(d) of the Clean
Air Act does not grant EPA authority to limit carbon dioxide
emissions from existing power plants. For that reason,
petitioners ask the Court to enjoin EPA from issuing a final
rule limiting those carbon dioxide emissions.
In effect, petitioners are asking us to review the legality
of a proposed EPA rule so as to prevent EPA from issuing a
final rule. But as this Court has stated, a proposed EPA rule
“is not final agency action subject to judicial review.” Las
Brisas Energy Center, LLC v. EPA, No. 12-1248, 2012 WL
10939210 (D.C. Cir. 2012). We may review final agency
rules. See generally Abbott Laboratories v. Gardner, 387
U.S. 136, 149-52 (1967). But we do not have authority to
review proposed rules. See 42 U.S.C. § 7607(b)(1) (Clean Air
Act) (“A petition for review of action of the Administrator in
8
promulgating . . . any standard of performance or requirement
under section 7411 of this title . . . or any other nationally
applicable regulations promulgated, or final action taken, by
the Administrator under this chapter may be filed . . . .”); cf. 5
U.S.C. § 704 (Administrative Procedure Act) (“Agency action
made reviewable by statute and final agency action for which
there is no other adequate remedy in a court are subject to
judicial review.”).
Proposed rules meet neither of the two requirements for
final agency action: (i) They are not the “consummation of
the agency’s decisionmaking process,” and (ii) they do not
determine “rights or obligations,” or impose “legal
consequences.” Bennett v. Spear, 520 U.S. 154, 177-78
(1997) (internal quotation marks omitted); see also American
Portland Cement Alliance v. EPA, 101 F.3d 772, 777 (D.C.
Cir. 1996) (“a proposed regulation is still in flux,” so “review
is premature”) (internal quotation marks omitted); Action on
Smoking and Health v. Department of Labor, 28 F.3d 162,
165 (D.C. Cir. 1994) (“Agency action is final when it imposes
an obligation, denies a right, or fixes some legal relationship,”
and an agency’s “proposed rulemaking generates no such
consequences.”) (internal quotation marks omitted).
In an attempt to clear this hurdle to their suit, petitioners
advance three different arguments. None is persuasive.
First, petitioners contend that this Court has authority
under the All Writs Act to consider their challenge now, even
before EPA issues a final rule. The All Writs Act provides
that “all courts established by Act of Congress may issue all
writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law.” 28 U.S.C. § 1651(a). Although “the All Writs Act
authorizes employment of extraordinary writs, it confines the
9
authority to the issuance” of writs “in aid of the issuing
court’s jurisdiction.” In re Tennant, 359 F.3d 523, 527 (D.C.
Cir. 2004) (internal quotation marks omitted).
In this case, a writ is not necessary or appropriate to aid
the Court’s jurisdiction. After EPA issues a final rule, parties
with standing will be able to challenge that rule in a pre-
enforcement suit, as well as to seek a stay of the rule pending
judicial review. At that time (which will not be very long
from now, according to EPA), the Court will have an
opportunity to review the legality of the rule.
Petitioners contend, however, that we should consider
their challenge now because they are already incurring costs
in preparing for the anticipated final rule. And petitioners say
that the Court will not be able to fully remedy that injury if
we do not hear the case at this time. But courts have never
reviewed proposed rules, notwithstanding the costs that
parties may routinely incur in preparing for anticipated final
rules. We recognize that prudent organizations and
individuals may alter their behavior (and thereby incur costs)
based on what they think is likely to come in the form of new
regulations. But that reality has never been a justification for
allowing courts to review proposed agency rules. We see no
persuasive reason to blaze a new trail here.
In short, the All Writs Act does not authorize a court to
circumvent bedrock finality principles in order to review
proposed agency rules. See Pennsylvania Bureau of
Correction v. U.S. Marshals Service, 474 U.S. 34, 43 (1985)
(All Writs Act “does not authorize” courts “to issue ad hoc
writs whenever compliance with statutory procedures appears
inconvenient or less appropriate”); Schlagenhauf v. Holder,
379 U.S. 104, 110 (1964) (“It is, of course, well settled” that a
10
writ “is not to be used as a substitute for appeal, even though
hardship may result from delay.”) (internal citation omitted).
Second, petitioners argue that EPA’s public statements
about its legal authority to regulate carbon dioxide emissions
constitute final agency action subject to judicial review. As
petitioners correctly note, EPA has repeatedly and
unequivocally asserted that it has authority under Section
111(d) to restrict carbon dioxide emissions from existing
power plants. EPA has made such statements in the preamble
to the proposed rule, in a legal memorandum accompanying
the proposed rule, and in other public remarks discussing the
proposed rule. See, e.g., 79 Fed. Reg. at 34,853.
But those EPA statements are not final agency action. As
noted above, to be final an agency action must meet two
requirements. First, the agency action must constitute “the
consummation of the agency’s decisionmaking process.”
Bennett, 520 U.S. at 177-78 (internal quotation marks
omitted). Second, the agency action must be one “by which
rights or obligations have been determined, or from which
legal consequences will flow.” Id. (internal quotation marks
omitted).
Here, neither of those standard finality requirements is
met.
In the context of an ongoing rulemaking, an agency’s
statement about its legal authority to adopt a proposed rule is
not the “consummation” of the agency’s decisionmaking
process. Formally speaking, such a statement is a proposed
view of the law. Indeed, EPA recognized as much in this
instance when it asked for “further input through public
comment on all aspects” of the agency’s proposal. 79 Fed.
Reg. at 34,835 (emphasis added). Put simply, the
11
consummation of the agency’s decisionmaking process with
respect to a rule occurs when the agency issues the rule.
Moreover, even if EPA’s position on its legal authority is
set in stone, the agency’s statements about its legal authority –
unconnected to any final rule or other final agency action – do
not impose any legal obligations or prohibitions on
petitioners. Any such legal obligations or prohibitions will be
established, and any legal consequences for violating those
obligations or prohibitions will be imposed, only after EPA
finalizes a rule.
In short, EPA’s statements about its legal authority under
Section 111(d) meet neither of the requirements for final
agency action.
Third, no doubt recognizing the problems with their
attempt to challenge a proposed rule (including the lack of
precedent supporting judicial review of a proposed rule), the
State petitioners separately challenge a 2011 settlement
agreement that EPA reached with several other States and
environmental groups. By challenging that settlement
agreement, the State petitioners hope to obtain a backdoor
ruling from the Court that EPA lacks legal authority under
Section 111(d) to regulate carbon dioxide emissions from
existing power plants. But the settlement agreement did not
obligate EPA to issue a final rule restricting carbon dioxide
emissions from existing power plants. It simply set a timeline
for EPA to decide whether to do so. As our precedent makes
clear, a settlement agreement that does nothing more than set
a timeline for agency action, without dictating the content of
that action, does not impose an injury in fact on entities that
are not parties to the settlement agreement. See Defenders of
Wildlife v. Perciasepe, 714 F.3d 1317, 1324-25 (D.C. Cir.
2013). State petitioners therefore lack standing to challenge
12
the settlement agreement. Moreover, State petitioners’
challenge to the settlement agreement is untimely. They had
to file suit within 60 days after EPA published notice of the
settlement agreement in the Federal Register. See 42 U.S.C.
§ 7607(b)(1). They did not file suit until 2014, more than two
years after publication.
***
We deny the petitions for review and the petition for a
writ of prohibition.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in the judgment: I agree that the petitioners in No. 14-1146
do not have standing to challenge the settlement agreement. I
also agree that we do not have jurisdiction to hear the petition
for review in No. 14-1151 because the proposed rule that the
petitioners challenge is non-final agency action. And while I
too would deny the application for a writ of prohibition in No.
14-1112, I write separately to distance myself from my
colleagues’ cramped view of our extraordinary writ authority.
The All Writs Act gives this Court the power to issue “all
writs necessary or appropriate in aid of [its] respective
jurisdiction[] and agreeable to the usages and principles of
law.” 28 U.S.C. § 1651(a). The Act confines the power to
grant writs “to the issuance of process ‘in aid of’ the issuing
court’s jurisdiction. The Act does not enlarge that
jurisdiction.” In re Tennant, 359 F.3d 523, 527 (D.C. Cir.
2004) (Roberts, J.) (alterations omitted). The Act’s language
means that this Court may grant a writ in “those cases which
are within [the] court’s appellate jurisdiction although no
appeal has been perfected.” Id. at 528 (alteration omitted). In
other words, once an agency has initiated “a proceeding of
some kind” that may result in an appeal to this Court, that
matter is “within our appellate jurisdiction—however
prospective or potential that jurisdiction might be.” Id. at 529
(quotation mark and alteration omitted). Jurisdiction to issue
a writ therefore lies “in the court that would have authority to
review the agency’s final decision.” Id. at 531.
We have jurisdiction here to issue a writ of prohibition.
The EPA initiated a rulemaking by publishing a proposed
rule. See generally 79 Fed. Reg. 34,830 (June 18, 2014).
This proceeding will result in a final rule that may be
challenged on direct review in this Court. See id. at 34,838
(“[T]he EPA expects to finalize this rulemaking by June 1,
2015.”); 42 U.S.C. § 7607(b)(1) (“A petition for review of . . .
any standard of performance or requirement under section
2
7411 of this title . . . may be filed only in the United States
Court of Appeals for the District of Columbia.” (footnote
omitted)). Consequently, because this Court “would have
authority to review the agency’s final decision,” we have
authority to issue a writ of prohibition in the interim.
Tennant, 359 F.3d at 531; see also FTC v. Dean Foods Co.,
384 U.S. 597, 603 (1966) (authority to grant writ “extends to
the potential jurisdiction of the appellate court where an
appeal is not then pending but may be later perfected”).
We retain jurisdiction to issue writs despite the Clean Air
Act’s limitation on judicial review. See 42 U.S.C. § 7607(e).
“The All Writs Act invests a court with a power essentially
equitable.” Clinton v. Goldsmith, 526 U.S. 529, 537 (1999).
Subject to constitutional limitations, the Congress may strip
federal courts of their equitable authority under the All Writs
Act. See United States v. Philip Morris USA, Inc., 396 F.3d
1190, 1197 (D.C. Cir. 2005) (court should not “expand upon
our equitable jurisdiction if . . . we are restricted by the
statutory language”); Cobell v. Norton, 240 F.3d 1081, 1108
(D.C. Cir. 2001) (courts “possess the full range of remedial
powers” unless statute “restrict[s] their exercise”). But to
properly restrict a court’s equitable power, a statute must do
so plainly and unequivocally. See Weinberger v. Romero-
Barcleo, 456 U.S. 305, 313 (1982) (“Unless a statute in so
many words, or by a necessary and inescapable inference,
restricts the court’s jurisdiction in equity, the full scope of that
jurisdiction is to be recognized and applied.”); Califano v.
Yamasaki, 442 U.S. 682, 705 (1979) (courts retain equitable
powers “[a]bsent the clearest command to the contrary from
Congress”); Dean Foods Co., 384 U.S. at 608 (courts retain
authority under All Writs Act “[i]n the absence of explicit
direction from Congress” (emphasis added)).
3
The Clean Air Act provides that “[n]othing in this chapter
shall be construed to authorize judicial review of regulations
or orders of the Administrator under this chapter, except as
provided in this section.” 42 U.S.C. § 7607(e). This language
falls far short of an “explicit direction” to limit our authority
under the All Writs Act. Dean Foods Co., 384 U.S. at 608.
Section 7607(e) mentions neither writ authority nor our
traditional equitable powers. The failure to include
mandamus relief or a phrase of similar ilk is critical. In
Ganem v. Heckler, 746 F.2d 844 (D.C. Cir. 1984), we held
that the relevant statute’s failure to “mention . . . the
uncodified mandamus jurisdiction of the District of Columbia
courts” counseled against the conclusion that mandamus
jurisdiction was lacking. Id. at 851. Without an explicit
command that jurisdiction under the All Writs Act had been
withdrawn, we found it implausible that the court’s equitable
powers had been restricted. See id. And although we did not
say so explicitly, the conclusion is supported by the basic
canon of statutory construction that “we do not lightly assume
that Congress meant to restrict the equitable powers of the
federal courts.” Miller v. French, 530 U.S. 327, 336 (2000).
Moreover, we noted in Ganem that the Congress “knows
how to withdraw a particular remedy,” such as the right to a
writ of prohibition, when it wants to do so. 746 F.2d at 852.
When a court fails to construe a statute as stripping its
jurisdiction to issue writs, the Congress has responded by
explicitly eliminating that equitable authority. See id. (citing
84 Stat. 790, that “no other official or any court of the United
States shall have power or jurisdiction to review any . . .
decision by an action in the nature of mandamus or
otherwise”); see id. (“The fact that Congress knows how to
withdraw a particular remedy and has not expressly done so is
some indication of a congressional intent to preserve that
remedy.”). Because section 7607(e) does not speak to our
4
writ or equitable powers, there is no “necessary and
inescapable inference” that our power has been
circumscribed. 1 Weinberger, 456 U.S. at 313. I do not read
the majority opinion to suggest otherwise.
Nevertheless, simply because we have jurisdiction to
grant a writ of prohibition does not mean that it is always
1
The following is a non-exhaustive list of statutes that take away
the court’s authority. 5 U.S.C. § 8128(b)(2) (“The action of the
Secretary [of Labor] or his designee . . . is not subject to review by
another official of the United States or by a court by mandamus or
otherwise.”); 8 U.S.C. § 1252(a)(2)(A) (“[n]otwithstanding any
other provision of law (statutory or nonstatutory) . . . or . . . [the All
Writs Act], no court shall have jurisdiction to review” various
immigration orders); 38 U.S.C. § 511(a) (“[T]he decision of the
Secretary [of Veterans Affairs]. . . shall be final and conclusive and
may not be reviewed by any other official or by any court, whether
by an action in the nature of mandamus or otherwise.”); 42 U.S.C. §
1715 (“The action of the Secretary [of Labor] . . . shall be final and
conclusive on all questions of law and fact and not subject
to review by any other official of the United States or by any court
by mandamus or otherwise”). We have assumed that extraordinary
relief is available vis-à-vis the EPA in a number of unpublished
dispositions. See New York v. EPA, No. 02-1387 et al., 2003 WL
22326398, at *1 (D.C. Cir. Sept. 30, 2003) (denying petition for
writ of mandamus because EPA’s delay was not “so extraordinary
as to warrant mandamus relief”); In re Sierra Club, No. 01-1141,
2001 WL 799956, at *1 (D.C. Cir. June 8, 2001) (declining to issue
writ of prohibition against EPA because petitioners had “other
adequate means to obtain the relief requested”); In re New Mexico,
No. 95-1273, 1995 WL 479797, at *1 (D.C. Cir. July 19, 1995)
(declining to issue writ because agency delay was not
unreasonable). And relatedly, we declined to issue an injunction
against the EPA to compel it to reach a final decision—equitable
relief similar to that provided by an extraordinary writ. Sierra Club
v. Thomas, 828 F.2d 783, 784 (D.C. Cir. 1987).
5
appropriate to do so. To obtain a writ, a petitioner must
satisfy three conditions:
(1) the mandamus petitioner must have no
other adequate means to attain the relief he
desires, (2) the mandamus petitioner must
show that his right to the issuance of the writ is
clear and indisputable, and (3) the court, in the
exercise of its discretion, must be satisfied that
the writ is appropriate under the circumstances.
In re Kellogg Brown & Root, Inc., 756 F.3d 754, 760 (D.C.
Cir. 2014) (quotation marks omitted). Although the test is
framed in terms of mandamus, it is equally applicable to a
writ of prohibition. See In re Sealed Case No. 98-3077, 151
F.3d 1059, 1063 n.4 (D.C. Cir. 1998) (per curiam) (“the
grounds for issuing the writs [of mandamus and prohibition]
are virtually identical”); see also In re McCarthey, 368 F.3d
1266, 1268 (10th Cir. 2004) (“The standards for reviewing
petitions for writs of prohibition are similar to the standards
for reviewing petitions for writs of mandamus.”).
The third factor in the three-part test evaluates whether a
writ is appropriate given the circumstances of the case. This
factor is grounded in equitable principles: “The common-law
writs, like equitable remedies, may be granted or withheld in
the sound discretion of the court.” Roche v. Evaporated Milk
Ass’n, 319 U.S. 21, 25 (1943). Our discretion is relatively
unbounded; it is informed only by “those principles which
should guide judicial discretion in the use of an extraordinary
remedy rather than . . . formal rules rigorously controlling
judicial action.” Id. at 26. We have characterized the
appropriateness inquiry as “a relatively broad and amorphous
totality of the circumstances consideration.” In re Kellogg,
756 F.3d at 762. At the same time, appropriateness must take
6
into account that the power to issue writs is “sparingly
exercised.” Parr v. United States, 351 U.S. 513, 520 (1956).
Granting the writ would be inappropriate in this instance
because the EPA has represented that it will promulgate a
final rule before this opinion issues. In the proposed rule, the
EPA stated that it “expects to finalize this rulemaking by June
1, 2015” due to “the urgent need for actions to reduce
[greenhouse gas] emissions.” 79 Fed. Reg. at 34,838.
Counsel for the EPA at oral argument again stated that the
proposed rule “might not be [promulgated in] June” but “will
be [promulgated] this summer.” Oral Arg. Tr. 77–78. Thus,
by the time the majority opinion and this concurrence issue—
or shortly thereafter—the petitioners will have a final rule that
can be challenged as final agency action in this Court. See
Ass’n of Irritated Residents v. EPA, 494 F.3d 1027, 1030
(D.C. Cir. 2007) (“final agency actions[] includ[e] an
agency’s promulgation of a rule”). Assuming at least one
petitioner has standing, we will then adjudicate the same
questions raised here. Keeping in mind that the common law
writs are “drastic and extraordinary remed[ies] reserved for
really extraordinary causes,” Cheney v. U.S. Dist. Court for
the Dist. of Columbia, 542 U.S. 367, 380 (2004) (quotation
marks omitted), the overtaking of these petitions by the
imminent issuance of a final rule, in my view, moots the
requested relief.
The petitioners believe that a writ of prohibition is
appropriate because waiting to challenge the final rule is
inconvenient and costly. But that alone does not justify an
extraordinary remedy. See Nat’l Right to Work Legal Defense
v. Richey, 510 F.2d 1239, 1242 (D.C. Cir. 1975) (writ of
mandamus not “appropriate” when “review of the . . .
question will be fully available on appeal from a final”
decision); U.S. ex rel. Denholm & McKay Co. v. U.S. Bd. of
7
Tax Appeals, 125 F.2d 557, 558 (D.C. Cir. 1942) (declining to
grant writ of prohibition even though waiting for normal
appellate review “may be costlier in effort and money than if
the issue of jurisdiction were settled now”); Noble v. Eicher,
143 F.2d 1001, 1002 (D.C. Cir. 1944) (declining to grant writ
of prohibition even though “there will [be] inconvenience to
the petitioners”). These objections therefore cannot carry the
day.
In sum, although we have the authority to issue a writ of
prohibition, I would decline to do so because the passage of
time has rendered the issuance all but academic.