United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 16, 2015 Decided June 9, 2015

No. 14-1112

IN RE: MURRAY ENERGY CORPORATION,

PETITIONER

Consolidated with 14-1151

On Petition For Writ of Prohibition 

and On Petition For Review

No. 14-1146

STATE OF WEST VIRGINIA, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

CITY OF NEW YORK, ET AL.,

INTERVENORS

On Petition for Review of an Order of the 

United States Environmental Protection Agency
2

Elbert Lin, Solicitor General, Office of the Attorney 

General for the State of West Virginia, argued the cause for 

Petitioner-Intervenors States. With him on the briefs were 

Patrick Morrisey, Attorney General, Misha Tseytlin, General 

Counsel, J. Zak Ritchie, Assistant Attorney General, Luther 

Strange, Attorney General, Office of the Attorney General for 

the State of Alabama, Andrew Brasher, Solicitor General, 

Craig W. Richards, Attorney General, Office of the Attorney 

General for the State of Alaska, Steven E. Mulder, Senior 

Assistant Attorney General, Gregory F. Zoeller, Attorney 

General, Office of the Attorney for the State of Indiana, 

Timothy Junk, Deputy Attorney General, Derek Schmidt, 

Attorney General, Office of the Attorney General for the State 

of Kansas, Jeffrey A. Chanay, Deputy Attorney General, Jack 

Conway, Attorney General, Office of the Attorney General for 

the Commonwealth of Kentucky, Doug Peterson, Attorney 

General, Office of the Attorney General for the State of 

Nebraska, Blake E. Johnson, Assistant Attorney General, 

Michael DeWine, Attorney General, Office of the Attorney 

General for the State of Ohio, Eric E. Murphy, State Solicitor, 

E. Scott Pruitt, Attorney General, Office of the Attorney 

General for the State of Oklahoma, Patrick R. Wyrick, 

Solicitor General, P. Clayton Eubanks, Deputy Solicitor 

General, Alan Wilson, Attorney General, Office of the 

Attorney General for the State of South Carolina, James 

Emory Smith, Jr., Deputy Solicitor General, Peter K. Michael, 

Attorney General, Office of the Attorney General for the State 

of Wyoming, James Kaste, Deputy Attorney General, 

Michael J. McGrady, Senior Assistant Attorney General, 

Jeremiah I. Williamson, Assistant Attorney General, James D. 

ABuddy@ Caldwell, Attorney General, Office of the Attorney 

General for the State of Louisiana, Megan K. Terrell, Deputy 

Director, Marty J. Jackley, Attorney General, Office of the 

Attorney General for the State of South Dakota, and Roxanne 
3

Giedd, Deputy Attorney General at the time the brief was 

filed. C. Joseph Cordi Jr., Senior Assistant Attorney General, 

Office of the Attorney General for the State of Arkansas, 

Steven R. Blair, Assistant Attorney General, Office of the 

Attorney General for the State of South Dakota, Steven B. 

Jones, Assistant Attorney General, Office of the Attorney 

General for the State of Louisiana, Daniel P. Lennington, 

Assistant Attorney General, Office of the Attorney General 

for the State of Wisconsin, and Katherine Jean Spohn, Deputy 

Attorney General, Office of the Attorney General for the State 

of Nebraska, entered appearances.

Geoffrey K. Barnes argued the cause for Petitioner 

Murray Energy Corporation. With him on the briefs were J. 

Van Carson, Wendlene M. Lavey, John D. Lazzaretti, and 

Robert D. Cheren. Rebecca A. Worthington entered an 

appearance.

Laurence H. Tribe argued the case for PetitionerIntervenor Peabody Energy Corporation. With him on the 

briefs were Jonathan S. Massey, Tristan L. Duncan, and 

Thomas J. Grever. 

Robert R. Gasaway, Dominic E. Draye, Allison D. Wood, 

Tauna M. Szymanski, C. Boyden Gray, and Adam Gustafson

were on the briefs for Intervenor-Petitioners National 

Federation of Independent Business and Utility Air 

Regulatory Group.

Peter D. Keisler, Roger R. Martella, Jr., C. Frederick 

Beckner III, Paul J. Ray, Joshua Thompson, Leslie A. Hulse, 

Linda E. Kelly, Quentin Riegel, Steven P. Lehotsky, Sheldon 

Gilbert, and Richard Moskowitz were on the briefs for amici 

curiae Trade Associations and Pacific Legal Foundation in 

support of petitioners.
4

Peter S. Glaser and Carroll W. McGuffey were on the 

brief for amici curiae the National Mining Association and 

the American Coalition for Clean Coal Electricity. 

Brian H. Lynk and Amanda Shafer Berman, Attorneys, 

U.S. Department of Justice, argued the causes for 

respondents. With them on the briefs were John C. Cruden, 

Assistant Attorney General, and Elliott Zenick and Scott 

Jordan, Attorneys, U.S. Environmental Protection Agency.

Morgan A. Costello, Assistant Attorney General, Office 

of the Attorney General for the State of New York, argued the 

cause for Respondent-Intervenors States. With her on the 

briefs were Eric T. Schneiderman, Attorney General, Office 

of the Attorney General for the State of New York, Barbara 

D. Underwood, Solicitor General, Steven C. Wu, Deputy 

Solicitor General, Michael J. Myers and Brian Lusignan, 

Assistant Attorneys General, Kamala D. Harris, Attorney 

General, Office of the Attorney General for the State of 

California, David A. Zonana, Acting Supervising Deputy

Attorney General, M. Elaine Meckenstock, Elizabeth B. 

Rumsey, Timothy E. Sullivan, and Raissa Lerner, Deputy 

Attorneys General, George Jepsen, Attorney General, Office 

of the Attorney General for the State of Connecticut, 

Kimberly P. Massicotte and Scott N. Koschwitz, Assistant 

Attorneys General, Matthew P. Denn, Attorney General, 

Office of the Attorney General for the State of Delaware, 

Valerie M. Edge, Deputy Attorney General, Maura Healey, 

Attorney General, Office of the Attorney General for the 

Commonwealth of Massachusetts, Melissa A. Hoffer and 

Turner Smith, Assistant Attorneys General, Janet T. Mills, 

Attorney General, Office of the Attorney General for the State 

of Maine, Gerald D. Reid, Natural Resources Division Chief, 

Douglas F. Gansler, Attorney General at the time the brief 
5

was filed, Office of the Attorney General for the State of 

Maryland, Mary Raivel, Assistant Attorney General, Hector 

Balderas, Attorney General, Office of the Attorney General 

for the State of New Mexico, Tannis Fox, Assistant Attorney 

General, Ellen F. Rosenblum, Attorney General, Office of the 

Attorney General for the State of Oregon, Paul Garrahan, 

Acting Attorney-in-Charge, Peter Kilmartin, Attorney 

General, Rhode Island Department of Attorney General, 

Gregory S. Schultz, Assistant Attorney General, William H. 

Sorrell, Attorney General, Office of the Attorney General for 

the State of Vermont, Thea Schwartz, Assistant Attorney 

General, Robert W. Ferguson, Attorney General, Office of the 

Attorney General for the State of Washington, Leslie R. 

Seffern, Assistant Attorney General, Karl A. Racine, Attorney 

General, Office of the Attorney General for the District of 

Columbia, Amy McDonnell, General Counsel, and Carrie 

Noteboom. Carol A. Iancu, Assistant Attorney General, 

Office of the Attorney General for the Commonwealth of 

Massachusetts, and Christopher G. King, entered 

appearances.

Sean H. Donahue argued the cause for RespondentIntervenors NGOs. With him on the briefs were David 

Doniger, Benjamin Longstreth, Tomás Carbonell, Vickie 

Patton, Joanne Spalding, Andres Restrepo, and Ann Brewster 

Weeks. Megan Ceronsky entered an appearance.

Katherine E. Konschnik was on the brief for amicus 

curiae Law Professors in support of respondents.

Kevin Poloncarz was on the brief for amicus curiae 

Calpine Association in support of respondents.
6

Richard L. Revesz and Denise A. Grab were on the brief 

for amicus curiae Institute for Policy Integrity at New York 

University School of Law in support of respondent.

Before: HENDERSON, GRIFFITH, and KAVANAUGH, 

Circuit Judges.

Opinion for the Court filed by Circuit Judge 

KAVANAUGH, with whom Circuit Judge GRIFFITH joins.

Opinion concurring in the judgment filed by Circuit 

Judge HENDERSON.

KAVANAUGH, Circuit Judge: Petitioners are champing at 

the bit to challenge EPA’s anticipated rule restricting carbon 

dioxide emissions from existing power plants. But EPA has 

not yet issued a final rule. It has issued only a proposed rule. 

Petitioners nonetheless ask the Court to jump into the fray 

now. They want us to do something that they candidly 

acknowledge we have never done before: review the legality 

of a proposed rule. But a proposed rule is just a proposal. In 

justiciable cases, this Court has authority to review the 

legality of final agency rules. We do not have authority to

review proposed agency rules. In short, we deny the petitions 

for review and the petition for a writ of prohibition because 

the complained-of agency action is not final. 

* * *

On June 18, 2014, as part of the Executive Branch’s

efforts to tackle global warming, EPA proposed a rule to 

restrict carbon dioxide emissions from existing coal-fired and 

natural gas-fired power plants. See 79 Fed. Reg. 34,830, 

34,830 (June 18, 2014). In the preamble to the proposed rule

and in other statements about the proposed rule, EPA has
7

explained that Section 111(d) of the Clean Air Act supplies 

legal authority for EPA to restrict those emissions. See, e.g.,

id. at 34,852-53; see also 42 U.S.C. § 7411(d) (codifying 

Section 111(d) of the Clean Air Act). 

EPA published the proposed rule in the Federal Register

and invited “further input through public comment on all 

aspects of this proposal.” Id. at 34,835. The comment period 

has now closed, and EPA has received over two million 

comments. EPA has not yet issued a final rule but intends to 

do so this summer.

Petitioners here are Murray Energy Corporation, which is 

a coal company whose business would be negatively affected 

by a restriction on carbon dioxide emissions from coal-fired 

power plants, and the States of West Virginia, Alabama, 

Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, 

Oklahoma, South Carolina, South Dakota, and Wyoming. 

Shortly after EPA issued its proposed rule, petitioners filed 

suit. According to petitioners, Section 111(d) of the Clean 

Air Act does not grant EPA authority to limit carbon dioxide 

emissions from existing power plants. For that reason, 

petitioners ask the Court to enjoin EPA from issuing a final 

rule limiting those carbon dioxide emissions. 

In effect, petitioners are asking us to review the legality 

of a proposed EPA rule so as to prevent EPA from issuing a 

final rule. But as this Court has stated, a proposed EPA rule 

“is not final agency action subject to judicial review.” Las 

Brisas Energy Center, LLC v. EPA, No. 12-1248, 2012 WL 

10939210 (D.C. Cir. 2012). We may review final agency 

rules. See generally Abbott Laboratories v. Gardner, 387 

U.S. 136, 149-52 (1967). But we do not have authority to

review proposed rules. See 42 U.S.C. § 7607(b)(1) (Clean Air 

Act) (“A petition for review of action of the Administrator in 
8

promulgating . . . any standard of performance or requirement 

under section 7411 of this title . . . or any other nationally 

applicable regulations promulgated, or final action taken, by 

the Administrator under this chapter may be filed . . . .”); cf. 5 

U.S.C. § 704 (Administrative Procedure Act) (“Agency action 

made reviewable by statute and final agency action for which 

there is no other adequate remedy in a court are subject to 

judicial review.”). 

Proposed rules meet neither of the two requirements for 

final agency action: (i) They are not the “consummation of 

the agency’s decisionmaking process,” and (ii) they do not 

determine “rights or obligations,” or impose “legal 

consequences.” Bennett v. Spear, 520 U.S. 154, 177-78 

(1997) (internal quotation marks omitted); see also American 

Portland Cement Alliance v. EPA, 101 F.3d 772, 777 (D.C. 

Cir. 1996) (“a proposed regulation is still in flux,” so “review 

is premature”) (internal quotation marks omitted); Action on 

Smoking and Health v. Department of Labor, 28 F.3d 162, 

165 (D.C. Cir. 1994) (“Agency action is final when it imposes 

an obligation, denies a right, or fixes some legal relationship,” 

and an agency’s “proposed rulemaking generates no such 

consequences.”) (internal quotation marks omitted).

In an attempt to clear this hurdle to their suit, petitioners

advance three different arguments. None is persuasive. 

First, petitioners contend that this Court has authority

under the All Writs Act to consider their challenge now, even 

before EPA issues a final rule. The All Writs Act provides 

that “all courts established by Act of Congress may issue all 

writs necessary or appropriate in aid of their respective 

jurisdictions and agreeable to the usages and principles of 

law.” 28 U.S.C. § 1651(a). Although “the All Writs Act 

authorizes employment of extraordinary writs, it confines the 
9

authority to the issuance” of writs “in aid of the issuing 

court’s jurisdiction.” In re Tennant, 359 F.3d 523, 527 (D.C. 

Cir. 2004) (internal quotation marks omitted). 

In this case, a writ is not necessary or appropriate to aid

the Court’s jurisdiction. After EPA issues a final rule, parties 

with standing will be able to challenge that rule in a preenforcement suit, as well as to seek a stay of the rule pending 

judicial review. At that time (which will not be very long 

from now, according to EPA), the Court will have an 

opportunity to review the legality of the rule. 

Petitioners contend, however, that we should consider 

their challenge now because they are already incurring costs 

in preparing for the anticipated final rule. And petitioners say 

that the Court will not be able to fully remedy that injury if 

we do not hear the case at this time. But courts have never

reviewed proposed rules, notwithstanding the costs that 

parties may routinely incur in preparing for anticipated final 

rules. We recognize that prudent organizations and 

individuals may alter their behavior (and thereby incur costs) 

based on what they think is likely to come in the form of new 

regulations. But that reality has never been a justification for 

allowing courts to review proposed agency rules. We see no 

persuasive reason to blaze a new trail here. 

In short, the All Writs Act does not authorize a court to 

circumvent bedrock finality principles in order to review 

proposed agency rules. See Pennsylvania Bureau of 

Correction v. U.S. Marshals Service, 474 U.S. 34, 43 (1985) 

(All Writs Act “does not authorize” courts “to issue ad hoc 

writs whenever compliance with statutory procedures appears 

inconvenient or less appropriate”); Schlagenhauf v. Holder, 

379 U.S. 104, 110 (1964) (“It is, of course, well settled” that a 
10

writ “is not to be used as a substitute for appeal, even though 

hardship may result from delay.”) (internal citation omitted). 

Second, petitioners argue that EPA’s public statements 

about its legal authority to regulate carbon dioxide emissions 

constitute final agency action subject to judicial review. As 

petitioners correctly note, EPA has repeatedly and 

unequivocally asserted that it has authority under Section 

111(d) to restrict carbon dioxide emissions from existing 

power plants. EPA has made such statements in the preamble 

to the proposed rule, in a legal memorandum accompanying 

the proposed rule, and in other public remarks discussing the 

proposed rule. See, e.g., 79 Fed. Reg. at 34,853.

But those EPA statements are not final agency action. As 

noted above, to be final an agency action must meet two 

requirements. First, the agency action must constitute “the 

consummation of the agency’s decisionmaking process.” 

Bennett, 520 U.S. at 177-78 (internal quotation marks 

omitted). Second, the agency action must be one “by which 

rights or obligations have been determined, or from which 

legal consequences will flow.” Id. (internal quotation marks 

omitted).

Here, neither of those standard finality requirements is 

met. 

In the context of an ongoing rulemaking, an agency’s 

statement about its legal authority to adopt a proposed rule is

not the “consummation” of the agency’s decisionmaking 

process. Formally speaking, such a statement is a proposed

view of the law. Indeed, EPA recognized as much in this 

instance when it asked for “further input through public 

comment on all aspects” of the agency’s proposal. 79 Fed. 

Reg. at 34,835 (emphasis added). Put simply, the 
11

consummation of the agency’s decisionmaking process with 

respect to a rule occurs when the agency issues the rule.

Moreover, even if EPA’s position on its legal authority is

set in stone, the agency’s statements about its legal authority –

unconnected to any final rule or other final agency action – do

not impose any legal obligations or prohibitions on 

petitioners. Any such legal obligations or prohibitions will be 

established, and any legal consequences for violating those 

obligations or prohibitions will be imposed, only after EPA

finalizes a rule. 

In short, EPA’s statements about its legal authority under 

Section 111(d) meet neither of the requirements for final 

agency action.

Third, no doubt recognizing the problems with their

attempt to challenge a proposed rule (including the lack of 

precedent supporting judicial review of a proposed rule), the 

State petitioners separately challenge a 2011 settlement 

agreement that EPA reached with several other States and 

environmental groups. By challenging that settlement 

agreement, the State petitioners hope to obtain a backdoor 

ruling from the Court that EPA lacks legal authority under 

Section 111(d) to regulate carbon dioxide emissions from 

existing power plants. But the settlement agreement did not 

obligate EPA to issue a final rule restricting carbon dioxide 

emissions from existing power plants. It simply set a timeline 

for EPA to decide whether to do so. As our precedent makes 

clear, a settlement agreement that does nothing more than set 

a timeline for agency action, without dictating the content of 

that action, does not impose an injury in fact on entities that 

are not parties to the settlement agreement. See Defenders of 

Wildlife v. Perciasepe, 714 F.3d 1317, 1324-25 (D.C. Cir. 

2013). State petitioners therefore lack standing to challenge 
12

the settlement agreement. Moreover, State petitioners’ 

challenge to the settlement agreement is untimely. They had

to file suit within 60 days after EPA published notice of the 

settlement agreement in the Federal Register. See 42 U.S.C. 

§ 7607(b)(1). They did not file suit until 2014, more than two 

years after publication. 

* * *

We deny the petitions for review and the petition for a 

writ of prohibition. 

So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring 

in the judgment: I agree that the petitioners in No. 14-1146 

do not have standing to challenge the settlement agreement. I 

also agree that we do not have jurisdiction to hear the petition 

for review in No. 14-1151 because the proposed rule that the 

petitioners challenge is non-final agency action. And while I 

too would deny the application for a writ of prohibition in No. 

14-1112, I write separately to distance myself from my 

colleagues’ cramped view of our extraordinary writ authority.

The All Writs Act gives this Court the power to issue “all 

writs necessary or appropriate in aid of [its] respective 

jurisdiction[] and agreeable to the usages and principles of 

law.” 28 U.S.C. § 1651(a). The Act confines the power to 

grant writs “to the issuance of process ‘in aid of’ the issuing 

court’s jurisdiction. The Act does not enlarge that 

jurisdiction.” In re Tennant, 359 F.3d 523, 527 (D.C. Cir. 

2004) (alterations omitted). The Act’s language means that 

this Court may grant a writ in “those cases which are within 

[the] court’s appellate jurisdiction although no appeal has 

been perfected.” Id. at 528 (alteration omitted). In other 

words, once an agency has initiated “a proceeding of some

kind” that may result in an appeal to this Court, that matter is 

“within our appellate jurisdiction—however prospective or 

potential that jurisdiction might be.” Id. at 529 (quotation 

mark and alteration omitted). Jurisdiction to issue a writ 

therefore lies “in the court that would have authority to review 

the agency’s final decision.” Id. at 531.

We have jurisdiction here to issue a writ of prohibition. 

The EPA initiated a rulemaking by publishing a proposed 

rule. See generally 79 Fed. Reg. 34,830 (June 18, 2014). 

This proceeding will result in a final rule that may be 

challenged on direct review in this Court. See id. at 34,838 

(“[T]he EPA expects to finalize this rulemaking by June 1, 

2015.”); 42 U.S.C. § 7607(b)(1) (“A petition for review of . . . 

any standard of performance or requirement under section 
2

7411 of this title . . . may be filed only in the United States 

Court of Appeals for the District of Columbia.” (footnote 

omitted)). Consequently, because this Court “would have 

authority to review the agency’s final decision,” we have 

authority to issue a writ of prohibition in the interim. 

Tennant, 359 F.3d at 531; see also FTC v. Dean Foods Co., 

384 U.S. 597, 603 (1966) (authority to grant writ “extends to 

the potential jurisdiction of the appellate court where an 

appeal is not then pending but may be later perfected”). 

We retain jurisdiction to issue writs despite the Clean Air 

Act’s limitation on judicial review. See 42 U.S.C. § 7607(e). 

“The All Writs Act invests a court with a power essentially 

equitable.” Clinton v. Goldsmith, 526 U.S. 529, 537 (1999). 

Subject to constitutional limitations, the Congress may strip 

federal courts of their equitable authority under the All Writs 

Act. See United States v. Philip Morris USA, Inc., 396 F.3d 

1190, 1197 (D.C. Cir. 2005) (court should not “expand upon 

our equitable jurisdiction if . . . we are restricted by the

statutory language”); Cobell v. Norton, 240 F.3d 1081, 1108 

(D.C. Cir. 2001) (courts “possess the full range of remedial 

powers” unless statute “restrict[s] their exercise”). But to 

properly restrict a court’s equitable power, a statute must do 

so plainly and unequivocally. See Weinberger v. RomeroBarcleo, 456 U.S. 305, 313 (1982) (“Unless a statute in so 

many words, or by a necessary and inescapable inference, 

restricts the court’s jurisdiction in equity, the full scope of that 

jurisdiction is to be recognized and applied.”); Califano v. 

Yamasaki, 442 U.S. 682, 705 (1979) (courts retain equitable 

powers “[a]bsent the clearest command to the contrary from 

Congress”); Dean Foods Co., 384 U.S. at 608 (courts retain 

authority under All Writs Act “[i]n the absence of explicit

direction from Congress” (emphasis added)).
3

The Clean Air Act provides that “[n]othing in this chapter 

shall be construed to authorize judicial review of regulations 

or orders of the Administrator under this chapter, except as 

provided in this section.” 42 U.S.C. § 7607(e). This language 

falls far short of an “explicit direction” to limit our authority

under the All Writs Act. Dean Foods Co., 384 U.S. at 608. 

Section 7607(e) mentions neither writ authority nor our

traditional equitable powers. The failure to include 

mandamus relief or a phrase of similar ilk is critical. In 

Ganem v. Heckler, 746 F.2d 844 (D.C. Cir. 1984), we held 

that the relevant statute’s failure to “mention . . . the 

uncodified mandamus jurisdiction of the District of Columbia 

courts” counseled against the conclusion that mandamus 

jurisdiction was lacking. Id. at 851. Without an explicit 

command that jurisdiction under the All Writs Act had been

withdrawn, we found it implausible that the court’s equitable 

powers had been restricted. See id. And although we did not 

say so explicitly, the conclusion is supported by the basic

canon of statutory construction that “we do not lightly assume 

that Congress meant to restrict the equitable powers of the 

federal courts.” Miller v. French, 530 U.S. 327, 336 (2000).

Moreover, we noted in Ganem that the Congress “knows 

how to withdraw a particular remedy,” such as the right to a 

writ of prohibition, when it wants to do so. 746 F.2d at 852. 

When a court fails to construe a statute as stripping its 

jurisdiction to issue writs, the Congress has responded by 

explicitly eliminating that equitable authority. See id. (citing 

84 Stat. 790, that “no other official or any court of the United 

States shall have power or jurisdiction to review any . . .

decision by an action in the nature of mandamus or 

otherwise”); see id. (“The fact that Congress knows how to 

withdraw a particular remedy and has not expressly done so is 

some indication of a congressional intent to preserve that 

remedy.”). Because section 7607(e) does not speak to our 
4

writ or equitable powers, there is no “necessary and 

inescapable inference” that our power has been 

circumscribed.

1

 Weinberger, 456 U.S. at 313. I do not read 

the majority opinion to suggest otherwise. 

Nevertheless, simply because we have jurisdiction to 

grant a writ of prohibition does not mean that it is always

 1

 The following is a non-exhaustive list of statutes that take away 

the court’s authority. 5 U.S.C. § 8128(b)(2) (“The action of the 

Secretary [of Labor] or his designee . . . is not subject to review by 

another official of the United States or by a court by mandamus or 

otherwise.”); 8 U.S.C. § 1252(a)(2)(A) (“[n]otwithstanding any 

other provision of law (statutory or nonstatutory) . . . or . . . [the All 

Writs Act], no court shall have jurisdiction to review” various 

immigration orders); 38 U.S.C. § 511(a) (“[T]he decision of the 

Secretary [of Veterans Affairs]. . . shall be final and conclusive and 

may not be reviewed by any other official or by any court, whether 

by an action in the nature of mandamus or otherwise.”); 42 U.S.C. § 

1715 (“The action of the Secretary [of Labor] . . . shall be final and 

conclusive on all questions of law and fact and not subject 

to review by any other official of the United States or by any court 

by mandamus or otherwise”). We have assumed that extraordinary 

relief is available vis-à-vis the EPA in a number of unpublished 

dispositions. See New York v. EPA, No. 02-1387 et al., 2003 WL 

22326398, at *1 (D.C. Cir. Sept. 30, 2003) (denying petition for 

writ of mandamus because EPA’s delay was not “so extraordinary 

as to warrant mandamus relief”); In re Sierra Club, No. 01-1141, 

2001 WL 799956, at *1 (D.C. Cir. June 8, 2001) (declining to issue 

writ of prohibition against EPA because petitioners had “other 

adequate means to obtain the relief requested”); In re New Mexico, 

No. 95-1273, 1995 WL 479797, at *1 (D.C. Cir. July 19, 1995) 

(declining to issue writ because agency delay was not 

unreasonable). And relatedly, we declined to issue an injunction 

against the EPA to compel it to reach a final decision—equitable 

relief similar to that provided by an extraordinary writ. Sierra Club 

v. Thomas, 828 F.2d 783, 784 (D.C. Cir. 1987). 
5

appropriate to do so. To obtain a writ, a petitioner must 

satisfy three conditions:

(1) the mandamus petitioner must have no 

other adequate means to attain the relief he 

desires, (2) the mandamus petitioner must 

show that his right to the issuance of the writ is 

clear and indisputable, and (3) the court, in the 

exercise of its discretion, must be satisfied that 

the writ is appropriate under the circumstances.

In re Kellogg Brown & Root, Inc., 756 F.3d 754, 760 (D.C. 

Cir. 2014) (quotation marks omitted). Although the test is 

framed in terms of mandamus, it is equally applicable to a 

writ of prohibition. See In re Sealed Case No. 98-3077, 151 

F.3d 1059, 1063 n.4 (D.C. Cir. 1998) (per curiam) (“the 

grounds for issuing the writs [of mandamus and prohibition] 

are virtually identical”); see also In re McCarthey, 368 F.3d 

1266, 1268 (10th Cir. 2004) (“The standards for reviewing 

petitions for writs of prohibition are similar to the standards 

for reviewing petitions for writs of mandamus.”).

The third factor in the three-part test evaluates whether a 

writ is appropriate given the circumstances of the case. This 

factor is grounded in equitable principles: “The common-law 

writs, like equitable remedies, may be granted or withheld in 

the sound discretion of the court.” Roche v. Evaporated Milk 

Ass’n, 319 U.S. 21, 25 (1943). Our discretion is relatively 

unbounded; it is informed only by “those principles which 

should guide judicial discretion in the use of an extraordinary 

remedy rather than . . . formal rules rigorously controlling 

judicial action.” Id. at 26. We have characterized the 

appropriateness inquiry as “a relatively broad and amorphous 

totality of the circumstances consideration.” In re Kellogg,

756 F.3d at 762. At the same time, appropriateness must take 
6

into account that the power to issue writs is “sparingly 

exercised.” Parr v. United States, 351 U.S. 513, 520 (1956).

Granting the writ would be inappropriate in this instance 

because the EPA has represented that it will promulgate a 

final rule before this opinion issues. In the proposed rule, the 

EPA stated that it “expects to finalize this rulemaking by June 

1, 2015” due to “the urgent need for actions to reduce 

[greenhouse gas] emissions.” 79 Fed. Reg. at 34,838. 

Counsel for the EPA at oral argument again stated that the 

proposed rule “might not be [promulgated in] June” but “will 

be [promulgated] this summer.” Oral Arg. Tr. 77–78. Thus, 

by the time the majority opinion and this concurrence issue—

or shortly thereafter—the petitioners will have a final rule that 

can be challenged as final agency action in this Court. See 

Ass’n of Irritated Residents v. EPA, 494 F.3d 1027, 1030 

(D.C. Cir. 2007) (“final agency actions[] includ[e] an

agency’s promulgation of a rule”). Assuming at least one 

petitioner has standing, we will then adjudicate the same 

questions raised here. Keeping in mind that the common law 

writs are “drastic and extraordinary remed[ies] reserved for 

really extraordinary causes,” Cheney v. U.S. Dist. Court for 

the Dist. of Columbia, 542 U.S. 367, 380 (2004) (quotation 

marks omitted), the overtaking of these petitions by the 

imminent issuance of a final rule, in my view, moots the 

requested relief. 

The petitioners believe that a writ of prohibition is 

appropriate because waiting to challenge the final rule is

inconvenient and costly. But that alone does not justify an 

extraordinary remedy. See Nat’l Right to Work Legal Defense 

v. Richey, 510 F.2d 1239, 1242 (D.C. Cir. 1975) (writ of 

mandamus not “appropriate” when “review of the . . .

question will be fully available on appeal from a final” 

decision); U.S. ex rel. Denholm & McKay Co. v. U.S. Bd. of 
7

Tax Appeals, 125 F.2d 557, 558 (D.C. Cir. 1942) (declining to 

grant writ of prohibition even though waiting for normal 

appellate review “may be costlier in effort and money than if 

the issue of jurisdiction were settled now”); Noble v. Eicher, 

143 F.2d 1001, 1002 (D.C. Cir. 1944) (declining to grant writ 

of prohibition even though “there will [be] inconvenience to 

the petitioners”). These objections therefore cannot carry the 

day.

In sum, although we have the authority to issue a writ of 

prohibition, I would decline to do so because the passage of 

time has rendered the issuance all but academic.