9 states join Murray Energy lawsuit against EPA rulemaking
Filed last month in the U.S. Court of Appeals for the District of Columbia Circuit, Murray’s complaint accuses EPA of running afoul of the Clean Air Act’s plain language.
“The ‘specific prohibition’ against EPA’s proposed rule is in the very statutory provision the agency cites as its authority,” says the brief from Alabama, Alaska, Kentucky, Nebraska, Ohio, Oklahoma, South Carolina, West Virginia and Wyoming.
The complaint argues that EPA cannot regulate existing power plants under the Clean Air Act’s Section 111(d) if it has already decided to regulate those same plants under a different section (Greenwire, June 19).
“Under this Court’s controlling case law and well-established practice, an obvious clerical error — a relatively common occurrence in modern, complex legislation — must be disregarded,” the states’ brief says.
“Furthermore, even if EPA’s novel claim that it must give ‘effect’ to a mistaken clerical entry were correct, the clerical error does not excise the substantive prohibition and the Proposed Rule would still be illegal.”
EPA has long said a discrepancy in the 1990 Clean Air Act amendments is leading to the confusion because the House and Senate failed to reconcile conflicting mandates.
“The two versions conflict with each other and thus are ambiguous,” EPA’s proposed rule says. “Under these circumstances, the EPA may reasonably construe the provision to authorize the regulation of GHGs under CAA section 111(d).”
And the agency’s legal memo on the issue says, “The Section 112 exclusion in Section 111(d) does not apply to [greenhouse gases], and 111(d) does not preclude the EPA from establishing guidelines covering GHGs from [electric generating units].”
In its filing, Murray recognized that the rule has yet to be finalized. “But as the stakes are so high, and delay will waste enormous amounts of industry, state and federal resources and result in increased coal fired power plant retirements that cannot be later remedied,” the company said, “this petition requests an extraordinary writ in aid of this Court’s undoubted jurisdiction over EPA’s mandate.”
Murray’s lawsuit is the first against EPA’s greenhouse gas proposal for existing power plants. Others are likely to follow from groups and companies.