States: Comment period on EPA climate rule a ‘sham’

Fifteen states suing the Environmental Protection Agency (EPA) told a federal court that the agency’s public comment period for its land climate rule is a “sham” because it has already made up its mind about the rule.

The states’ late Friday letter to the Court of Appeals for the District of Columbia Circuit is part of their effort to convince the court that the EPA has decided to regulate carbon dioxide emissions from existing power plants, a policy the states say is illegal under the Clean Air Act.

{mosads}It is a key argument to their challenge to the regulation, because courts traditionally can only overturn agency actions that are final, not proposed.

The states, led by West Virginia, drew the judges’ attention to a tweet EPA chief Gina McCarthy sent saying the agency is “committed” to writing the rule, along with a Huffington Post story to the same effect.

“McCarthy’s unprecedented and audacious behavior … lays bare EPA’s goal: to ensure that states sink unrecoverable resources into preparing state plans, while delaying judicial review for as long as possible under the cover of a sham comment period,” the states wrote.

The states presented their case to a three-judge panel of the court April 16.

While the judges were highly skeptical of stepping into the EPA’s process before it makes the rule final, they were more receptive to the states’ argument that comments from McCarthy and other EPA officials show that it has already made up its mind.

At the oral arguments, Judge Thomas Griffith said McCarthy’s previous comments on her goal to finalize the rule “do not help the government’s argument at all.”