Dive Brief:

• The U.S. Court of Appeals for the District of Columbia Circuit on Wednesday denied a request to put a judicial stay on the Environmental Protection Agency's (EPA) Clean Power Plan, which set a nationwide target to reduce carbon emissions from the power sector 32% by 2030.
• In a two-paragraph order, a three-judge panel from the D.C. Circuit ruled that the petitioners — a coalition of 15 states and a coal mining company — must wait for the agency to publish the regulations in the Federal Register before they can file a lawsuit against it and request a stay.
• In April, another panel of judges rejected a similar request from the same coalition led by the attorney general of West Virginia. In that case, the court also ruled the group must wait for the rule to be finalized before it can be challenged. 

Dive Insight:

In April, D.C. Circuit Court Judge Brett Kavanaugh wrote that while challengers are "champing at the bit" to contest the Clean Power Plan, they will have to follow normal court proceedings and wait until the rule was finalized to request a stay. 

The message from the court is about the same this time around. While the EPA has released the finalized Clean Power Plan to the public, it has not yet published the rule in the Federal Register — something the agency says will happen by the end of October. Until then, the court ruled, the challengers will just have to wait.

"Petitioners have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action," the three-judge panel wrote. A judicial stay would stop the EPA from implementing the regulatory package until all litigation is complete — a process that will likely take years. 

Opponents of the plan say they are already accruing costs based on the EPA's carbon regulations as utilities and states rush to design compliance strategies, so the regulation should be put on hold until its legality can be assessed. The EPA called the challenge premature, writing in a brief to the court that publication of the rule in the Federal Register, "while shortly forthcoming, has not yet occurred."

Analysts expect a rush to the courts in late October when the rule is eventually published in the Federal Register, SNL reports. The EPA made several changes to the finalized plan that were designed to ensure it is upheld in an eventual Supreme Court case, but recent rulings — especially the High Court's recent decision on the MATS rule — have cast some uncertainty over the fate of the Clean Power Plan.