In a decision released Tuesday, the D.C. Circuit held that an electric utility industry group could not challenge an EPA rule because it did not raise the relevant issues during the public comment period.  That result may seem unremarkable.  However, the remarkable aspect of the decision is that the group had no opportunity to comment because the issues of concern were not included in EPA’s proposed rule—EPA inserted them into the final rule without warning.  Nevertheless, the Court held that the industry group’s failure to comment precluded any challenges to those new aspects of the rule.

As directed by statute, the group filed a petition for reconsideration when it learned that EPA had inserted brand new concepts into its final rule without allowing an opportunity for public comment.  But the D.C. Circuit simply cited that ongoing reconsideration process (which has been ongoing now for nearly two years) as its justification for holding that EPA’s “final rule” was not yet sufficiently “final” to support a legal challenge.  Therefore, even though EPA’s rule is already final and effective, and even though the Court had all the relevant parties before it, the Court refused to consider the issues until after the completion of EPA’s reconsideration process, which is not subject to any legal deadline.

The message from the court appears to be this—not only must commenters address any issues in the proposed rule that they may want to challenge later, commenters must also attempt to predict what new issues EPA may raise for the first time in its final rule (even though doing so represents a violation of federal law).  Failure to employ such prescience could apparently preclude challenges to a rule until completion of EPA’s discretionary reconsideration process, under an administration that has already admitted to a lack of free time and available resources.

The Court’s opinion can be found here:  UARG v. EPA.