Consider it a trial run, or a dress rehearsal.
It doesn't really count, but you put all your energy into it anyway – to make sure you're ready when it comes time for the real performance.
Patrick Morrisey and 14 other state attorneys general were thwarted in their first attempt to have a federal court review the Environmental Protection Agency’s proposed Clean Power Plan, but you can bet this practice effort won't go to waste and that the next challenge won't be dismissed on a technicality.
Last week, the United States Court of Appeals for the District of Columbia declined to conduct the requested review, concluding that its authority extends only to promulgated rules, not proposed ones.
Noting that the team of AGs were “champing at the bit to challenge the agency’s anticipated rule,” Judge Brett Kavanaugh said that “the EPA has not yet issued a final rule. It has issued only a proposed rule.”
The 15 EPA antagonists were understandably disappointed. “When we filed this case last summer, we knew there would be procedural challenges,” Morrisey said, “but, given the clearly illegal nature of the rule and the real harm occurring in West Virginia and throughout the country, we believed it was necessary to take all available action to stop this rule as soon as possible.
“We stand by the arguments we made ... and believe that the litigation has further revealed the weakness of EPA’s arguments on the merits.”
Morrisey stressed that the court “said nothing about the legality of EPA’s rule. As the court recognized, the rule will be final very soon, and we look forward to continuing to press the issue.”
U.S. Sen. Shelley Moore Capito likewise recognizes that the real battle is yet to begin. “I remain confident in the merits of this case,” she asserted, “and strongly believe that the court will ultimately strike down this administration’s unprecedented power grab.”
We can't wait for the real performance.