Murray Energy argues for court to kill CO2 plan in proposal stage

Murray Energy, one of the largest coal producers in the U.S., filed a Dec. 15 brief at the U.S. Court of Appeals for the D.C. Circuit in a lawsuit it filed in August against the U.S. Environmental Protection Agency’s CO2-reducing Clean Power Plan, aimed at existing power plants.

“This is an extraordinary case,” the company told the court. “It presents the only time that EPA has ever proposed a regulation that would, inter alia, dramatically reorder the country’s electrical power system, adversely affect the reliability and cost of electricity, impose immediate obligations on States to design compliance programs, and disrupt markets for coal — based entirely on a provision of the Clean Air Act that expressly prohibits the very action that EPA proposes to take. Petitioner asks this Court to rule that EPA’s legal conclusion supporting the proposed rule is illegal, and that EPA may not proceed with the proposal. Under the unique circumstances of this case, this Court has authority to address the issues presented, and should halt a plainly unlawful proceeding that is already damaging Petitioner and Intervenors.”

Legal experts say it would be unusual for a court to step in and rule on a proposal from a federal agency, short of the final rule being issued. The Clean Power Plan is not due out in final form until next summer. But, since this proposal is already affecting utility decisions about the futures of various power plants, Murray Energy and the power industry at large hope that the appeals court will step in at this stage of the rulemaking process.

Said Murray Energy’s brief on that point: “Without any substantive defense for its actions, EPA has focused most of its efforts arguing that even if EPA has wrongly claimed authority expressly denied it by Congress, and even if it is relying on that illegal power grab to initiate rulemaking which it has no lawful right commence, and even if that rulemaking is costing States and the private sector millions to prepare for and in potentially wasted compliance costs and is weakening the nation’s power grid by pressuring existing coal-fired power plants to shut down or abandon coal for more expensive and less reliable fuels, this Court has no authority to review its actions until EPA finalizes an unlawful rule. Again EPA’s arguments are groundless. This Court has authority to issue extraordinary writs when appropriate, including to stop unlawful agency conduct. The Clean Air Act also expressly grants direct judicial review not just of final rules promulgatedby EPA, but of ‘any other’ final agency action as well.

“Here, a writ prohibiting EPA from issuing the unlawful mandate is necessary and appropriate. The petition for a writ is based on the fundamental legal infirmity of EPA’s forthcoming mandate. EPA cannot resolve its lack of authority by revising the proposed rule, since EPA has no other legal basis for the rule and the illegality demonstrated by the petition can only be redressed by total withdrawal of the rule (with no future replacement rule). There is no other suitable ‘fix’ to deal with EPA’s ultra vires conduct other than to instruct EPA not to proceed.”

Ohio-based Murray Energy is the largest privately-owned coal company in the U.S. and the fifth largest coal producer in the country. In 2014, Murray Energy expects to produce 65 million tons of coal from twelve active coal mining complexes in six states. The company also owns two billion tons of proven or probable coal reserves in the United States.

A declaration attached to the Dec. 15 brief, from Murray Energy founder Robert “Bob” Murray, said: “EPA’s plan expressly contemplates the shifting of fuel at power plants from coal to other fossil fuels, and the shifting of energy supply from fossil fuel power plants to nuclear power plants and renewable energy sources such as wind and solar. Thus, EPA’s plan calls for the shutting down and/or conversion of even more coal-fired power plants than already planned as a result of this piling on of regulation after regulation directly aimed at coal.”

Murray added: “In fact, the Preamble to EPA’s proposed rule states that, due to the rule, it estimates 24-32 gigawatts of additional coal-frred EGU retirements through 2020. EPA states that the rule will result in a decline in coal production for use by the power sector by roughly 25 to 27 percent in 2020 from base case levels. Further, according to EPA, the use of coal by the power sector will decrease roughly 30 to 32 percent in 2030.”

EPA’s brief in this case is due by Feb. 12, 2015. Various other parties have intervened in this case, including environmental groups like the Sierra Club on the side of EPA, and coal states like West Virginia and Wyoming on behalf of Murray Energy.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.