Parties lay out issues in lawsuits against EPA’s CO2 plan for new power plants

Coal producer Murray Energy and the free-market Energy & Environment Legal Institute laid out in separate Dec. 2 filings with the U.S. Court of Appeals for the D.C. Circuit the issues they want to pursue in their appeals of the CO2-reducing plan for new power plants published in final form on Oct. 23.

That publication, along with the publication that same day by the U.S. Environmental Protection Agency of its Clean Power Plan for existing power plants, triggered a wave of lawsuits in federal court. The plan for new power plants requires installation of carbon capture and storage systems on all new coal facilities, which the coal and power industries say amounts to an effective ban on all new coal plants.

Based on a Nov. 2 court order in the new plant case, Murray Energy, one of the nation’s largest coal producers, on Dec. 2 filed a non-binding statement of issues to be raised in this proceeding. EPA’s rule is “arbitrary, capricious, an abuse of discretion, and unlawful,” said the company, because:

  • New, reconstructed, and modified coal power plants do not contribute significantly to carbon emissions that may reasonably be anticipated to endanger public health or welfare.
  • The emission standard for new coal power plants is not an achievable national standard of performance.
  • The emission standard for new coal power plants relies on technologies for capturing and sequestering carbon that are not adequately demonstrated.
  • The national emission standard for new coal power plants relies on geologic formations that are limited to certain areas and are not available for use in many parts of the country.
  • EPA violated the Energy Policy Act of 2005 by relying on facilities subsidized under the Act to find that carbon capture and sequestration technologies are adequately demonstrated.
  • EPA admits the emission standard for new natural gas power plants will not affect emissions at all because no controls are required to meet it.
  • The rule eliminates the market for new coal power plants by allowing other new fossil fuel power plants to be built without imposing any carbon control costs, frustrating congressionally enacted energy policies.
  • The rule imposes improper standards on modified and reconstructed coal power plants.
  • EPA ignored required considerations of cost and energy impacts by pretending the rule would not limit the construction of new coal power plants.

Murray Energy added that it reserves the right to present and argue any other issues that have been preserved for judicial review or that arise during these proceedings.

The Energy & Environment Legal Institute also submitted a similar, non-binding statement of issues to be raised.

  • Whether the Final Rule violates Section 111(b) of the Clean Air Act (CAA) by establishing emission standards of performance for new and modified and reconstructed Electric Generating Units (EGUs) based on a technology or technologies that have not been adequately demonstrated and are not achievable, as required by CAA Section 111(b)?
  • Whether EPA’s reliance in the Final Rule on separate alleged “demonstrations” of the individual components of the technology or technologies on which the agency purports to rely violates CAA Section 111(b) or whether EPA has abused the agency’s discretion by relying on such component demonstrations?
  • Whether EPA has properly defined the “best system of emission reduction” for new fossil fuel-fired electric generating units as required by Section 111(b) of the CAA.
  • Whether the Final Rule violates the Energy Policy Act of 2005?
  • Whether EPA properly placed into the public docket and agency record during the Notice of Proposed Rulemaking all relevant and necessary material as required by federal code?
  • Whether EPA engaged in improper ex parte communications prior to the Notice of Proposed Rulemaking which formed the basis of the agency action and were undisclosed during the notice-and-comment process?
  • Whether EPA allowed personnel with conflicts of interest to draft the rule and failed to recuse decisionmakers with “unalterably closed minds” from reaching the determination to implement the Final Rule?
  • Whether EPA failed to respond to substantial issues raised in comments to the Notice of Proposed Rulemaking?
  • Whether the Final Rule creates an unconstitutional taking of property interests that can be avoided by an interpretation that is more consistent with the plain text of the rule and more consistent with past practice?

The institute said it also reserves the right to present and argue any other issues that have been preserved for judicial review or that arise during these proceedings.

Said the institute’s website about its purpose: “The Energy and Environment Legal Institute (E&E Legal) is a 501(c)(3) organization engaged in strategic litigation, policy research, and public education on important energy and environmental issues. Primarily through its strategic litigation efforts, E&E Legal seeks to address and correct onerous federal and state governmental actions that negatively impact energy and the environment. E&E Legal advocates responsible resource development, sound science, respect for property rights, and a commitment to markets as it holds accountable those who seek excessive and destructive government regulation that’s based on agenda-driven policy making, junk science, and hysteria.”

North Dakota has general issues to argue, plus a specific issue about lignite

Notable is that this litigation against the EPA plan for new power plants is a consolidation of several appeals and is known collectively under its lead plaintiff as State of North Dakota v. EPA.

The state of North Dakota laid out on Nov. 27 to the appeals court a shorter list of issues to be looked at.

  • Whether the Final Rule violates Section 111(b) of the Clean Air Act ( CAA) by establishing emission standards of performance for new and modified and reconstructed EGUs based on a technology or technologies that have not been adequately demonstrated and are not achievable, as required by CAA Section 111(b)?
  • Whether EPA’s reliance in the Final Rule on separate alleged “demonstrations” of the individual components of the technology or technologies on which the agency purports to rely violates CAA Section 111(b) or whether EPA has abused the agency’s discretion by relying on such component demonstrations?
  • Whether EPA abused its discretion by failing to create a separate subcategory for lignite coal in the Final Rule and by failing to recognize regional variability of fuels? North Dakota relies on locally-mined lignite, burned in mostly adjacent power plants, for much of its electricity.
  • Whether the Final Rule creates an unconstitutional taking of property interests that can be avoided by an interpretation that is more consistent with the plain text of the rule and more consistent with past practice?
  • Whether the Final Rule violates the Energy Policy Act of 2005?

Said EPA in the Oct. 23 final rule for new plants: “This action establishes standards of performance for newly constructed fossil fuel-fired steam generating units based on the performance of a new highly efficient [supercritical pulverized coal] EGU implementing post-combustion partial carbon capture and storage (CCS) technology, which the EPA determines to be the BSER for these sources. After consideration of a wide range of comments, technical input received on the availability, technical feasibility, and cost of CCS implementation, and publicly available information about projects that are implementing or planning to implement CCS, the EPA confirms its proposed determination that CCS technology is available and technically feasible to implement at fossil fuel-fired steam generating units.

“However, the EPA’s final standard reflects the consideration of legitimate concerns regarding the cost to implement available CCS technology on a new steam generating unit. Accordingly, the EPA is finalizing an emission standard for newly constructed fossil fuel-fired steam generating units at 1,400 lb CO2/MWh-g, a level that is less stringent than the proposed limitation of 1,100 lb CO2/MWh-g. This final standard reflects our identification of the BSER for such units to be a lower level of partial CCS than we identified as the basis of the proposed standards – one that we conclude better represents the requirement that the BSER be implementable at reasonable cost.”

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.