EPA says appeals court should deep-six coal industry suit over Clean Power Plan

With the case due for oral argument on April 16, the U.S. Environmental Protection Agency told a federal appeals court that a lawsuit over the proposed Clean Power Plan is premature, since this is not a final rule, and should be dismissed outright.

The Feb. 12 brief from EPA was filed at the U.S. Court of Appeals for the D.C. Circuit in a lawsuit filed in August 2014 by Ohio-based coal producer Murray Energy and that now involves various other groups that are part of this consolidated appeal. The Clean Power Plan calls for 30% CO2 reductions by 2030 from existing power plants and even EPA concedes that coal-fired power plants will have to shut because of it.

Said the Feb. 12 EPA brief: “At the President’s direction, EPA has proposed regulatory measures to address U.S. greenhouse gas emissions. One key measure is its proposal that states submit plans for reducing existing power plants’ carbon dioxide (“CO2”) emissions under [federal code]. Murray Energy Corp. (“Murray”), a coal producer, objects to this proposal, and petitions the Court to “halt” the ongoing rulemaking, either by issuing a writ of prohibition or “set[ting] aside EPA’s legal conclusion.” It so requests even though Murray is not an entity that would be regulated under the Proposed Rule; the rule is not final; and the issue Murray raises concerns the interpretation of a patently-ambiguous statutory provision.

“Murray argues that this is an “extraordinary case.” Murray is right, but not for the reasons it believes. Rather, it is what Murray asks this Court to do – halt an ongoing rulemaking before EPA takes final action – that is extraordinary. There is no legal basis for such relief, and EPA should not be prevented from completing a rulemaking intended to address the serious threat of climate change.”

EPA later added: “Neither Murray nor Intervenors in support of Petitioner can establish that they have Article III standing to seek review of the Proposed Rule. Speculation regarding the consequences of one possible future outcome of an ongoing notice-and-comment rulemaking proceeding is not enough to demonstrate the concrete, particularized, and actual or imminent injury required for Article III standing. The Court has dismissed such challenges on standing grounds in previous cases and should do likewise here.

“The Court also lacks jurisdiction because the Proposed Rule is obviously not a “final” action. The Act prescribes the process by which EPA may establish standards or requirements under section 7411(d), and EPA indisputably has not completed that process. EPA has only published a proposal for notice and comment; it has not yet considered and responded to those comments as the Act requires, nor “promulgated” a regulation. Thus, it has taken no action that has binding legal effect or determines any entity’s rights or obligations. Moreover, because EPA is in the midst of a noticeand-comment rulemaking process in which it will evaluate and respond to comments on the very legal question Murray would have this Court prematurely decide, this petition is not “fit” for a judicial decision and must be dismissed as unripe.”

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.