Ohio-based coal producer Murray Energy in a Sept. 17 filing in a federal appeals court laid out five issues it plans to raise as part of its Aug. 15 appeal of the U.S. Environmental Protection Agency’s Clean Power Plan, unveiled by the agency in June in draft form.
That plan, which calls for 30% CO2 reductions from existing power plants by 2030, is expected to have devastating impacts on coal-fired plants, and therefore on the coal industry. Murray Energy operates large coal mines in several states, including several longwall mines in northern West Virginia picked up last year from CONSOL Energy (NYSE: CNX). Murray Energy is the largest privately-owned coal company in the United States and the fifth largest coal producer in the country.
Murray Energy, at the request of the U.S. Court of Appeals for the D.C. Circuit, on Sept. 17 offered five non-binding issues to be raised in this proceeding to review the final action of the Administrator of the EPA initiating a Section 111(d) rulemaking, with Murray Energy saying that this EPA action was done without legal authority and in violation of the Clean Air Act.
The five issues are:
- Whether EPA has any legal authority to mandate state-by-state emission standards for existing power plants under Section 111(d) of the Clean Air Act when EPA already promulgated a national emission standard for power plants under Section 112 of the Clean Air Act given the express statutory limitation that EPA may only mandate state-by-state standards for emissions that are not “from a source category which is regulated under section 112.”
- Whether the Code of Laws of the United States accurately reflects the text of Section 111(d) after the 1990 Amendments to the Clean Air Act.
- Whether the determinations of the House Office of Law Revision Counsel — a nonpartisan legislative agency — in applying amendments to statutes in the Code of Laws of the United States that 1 U.S.C. § 204 provides “shall…establish prima facie the laws of the United States” are entitled to deference by this provision and by separation of powers concerns.
- Whether executive agencies are entitled to deference in rejecting reasonable determinations of the House Office of Law Revision Counsel in applying amendments to statutes in the Code of Laws of the United States.
- Whether EPA’s assertion of authority to regulate power plants under both Section 111(d) and Section 112 is arbitrary, capricious, or unlawful because it rests on reasoning divorced from the current statutory text and inconsistent with the design and structure of the Clean Air Act following the 1990 Amendments.
Said Murray Energy in its initial Aug. 15 notice of appeal in this case: “Petitioner notes that unlike the petitions for review resolved by this Court in the per curiam order issued in Las Brisas Energy Center, LLC v. EPA, No. 12-1248, this petition for review does not challenge the substance of a proposed rule. Rather, this petition for review challenges whether EPA had any authority to initiate a rulemaking at all when doing so violates an express prohibition and unlawfully strips power plants of their regulatory immunity.”