EPA climate rule could take two more months to become official

It could take up to two months for the Obama administration to make its climate rule for power plants official by publishing it in the Federal Register.

The Department of Justice, working for the Environmental Protection Agency (EPA) told a federal appeals court Monday that the regulation’s formal publication is coming soon but could take months.

{mosads}That schedule significantly delays any attempts to block the rule through the court system or through Congress, because the regulation is not official — and cannot be formally challenged — until it appears in the Register.

President Obama unveiled the full regulation Aug. 3, but the administration did not say until Monday’s court filing that it would take months to be published.

Attorneys for the federal government cited the delay Monday in arguing that the U.S. Court of Appeals for the District of Columbia Circuit should ignore the pleas from multiple states to temporarily block the rule. Any challenges to regulations can only come after they are published, the government said.

“Publication in the Federal Register, while shortly forthcoming, has not yet occurred,” they wrote. “Thus, both the plain terms of the [Clean Air] Act and this Court’s binding precedent compel dismissal of these petitions.”

Later, the attorneys said that publication “should occur within a period of less than two months.”

Multiple states, led by West Virginia, plan to sue to block the regulation once it is published. But they also filed earlier this month for a judicial stay so that their states would not be harmed by the rule’s requirements while they are fighting it.

But the Obama administration said the stay request is premature.

“Petitioners once again prematurely attack EPA’s Clean Power Plan and attempt to bypass the straightforward, and soon available, judicial review procedures in the Clean Air Act … by invoking the All Writs Act,” the administration wrote in its filing.

“This Court has already concluded in a decision issued earlier this summer that Petitioners must adhere to those procedures in challenging the Rule,” they said, citing the decision in Murray Energy v. EPA earlier this year, in which states and energy companies tried to challenge the proposed regulation before the final version was even announced.

The states have been asked to file a response to the EPA’s brief later this week, and the court will consider the stay after that.