Both sides ready arguments for case that could scotch EPA power plant rule 

Source: Jeremy P. Jacobs, E&E reporter • Posted: Monday, April 13, 2015

Energy companies and 15 predominantly Republican-led states will press federal judges this week to halt President Obama’s greenhouse gas standards for power plants.

In two consolidated cases, West Virginia and Murray Energy Corp. are leading a bid for the U.S. Court of Appeals for the District of Columbia Circuit to take the unusual step of preventing U.S. EPA from finalizing the standards — a key component of Obama’s effort to address climate change.

A three-judge D.C. Circuit panel composed entirely of Republican appointees will hear arguments Thursday morning.

The Ohio-based Murray, the country’s largest privately owned coal producer, and 15 states are asking the D.C. Circuit to issue an “extraordinary writ” to prevent EPA from completing the standards.

Previous legal attempts by states and regulated industries to block the finalization of EPA greenhouse gas rules have failed. But Murray and the other challengers contend that the greenhouse gas standards are too significant to wait for them to be completed.

“In the ordinary course, [judicial] review would follow EPA’s final promulgation of the mandate,” Murray said in court documents. “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, this petition requests an extraordinary writ in aid of this Court’s undoubted jurisdiction over EPA’s mandate.”

Murray and the states make several arguments for why EPA is acting beyond its authority under the Clean Air Act.

Primarily, they point to a legislative “glitch” issue stemming from two versions of the relevant section of the Clean Air Act, 111(d), being passed into law in the act’s 1990 amendments, one from the House and one from the Senate.

Both provisions were aimed at preventing duplicative or redundant air standards. Murray contends that one version bars EPA from issuing regulations under the section for sources already regulated under the law.

Under that reading, EPA’s greenhouse gas proposal would be foreclosed by the power plant air standards for mercury and other toxics that EPA finalized in 2012.

“By the plain terms of the Clean Air Act, as interpreted by the Supreme Court and by EPA itself,” Murray wrote, “this action foreclosed EPA from mandating state-by-state emission standards for these same sources.”

The other version of the law prevents EPA from issuing regulations for pollutants already covered by existing regulations. That reading would allow EPA’s new regulations.

EPA’s supporters, which include about a dozen states that filed court briefs, contend that the challengers are misreading the statute. They note that even before the amendments, the law intended Section 111(d) to cover pollutants, not sources. To suggest otherwise, they say, would mean that Congress intended to weaken the provision when it was amended in 1990, even though Congress clearly stated its goal was to make the law more robust.

Further, the agency contends that the dueling versions are ambiguous and therefore the court should defer to its interpretation.

EPA has also been forceful in pushing back against the challenges. In court documents, EPA said there is “no legal basis” for the court to prevent the agency from going forward with the regulation.

In particular, it argues that Murray and the other challengers cannot show how they are directly injured by a regulation that has yet to be finalized — a key legal procedural hurdle called standing.

“Speculation,” EPA wrote, “regarding the consequences of one possible future outcome of an ongoing notice-and-comment rule making proceedings is not enough to demonstrate the concrete, particularized, and actual or imminent injury required” for constitutional standing.

The challengers and EPA will each have 40 minutes to present their case Thursday, longer arguments than usual at the D.C. Circuit. Judges Karen Henderson, Thomas Griffith and Brett Kavanaugh will make up the panel.

All were appointed to the bench by Republican presidents and Kavanaugh in particular has been critical of EPA air regulations in previous cases.

Among the lawyers who will argue for the challengers is Harvard professor Laurence Tribe. A former mentor to Obama, Tribe has been sharply criticized for representing Peabody Energy Corp. in its opposition to the standards (Greenwire, April 6).

The states challenging the proposed standards are Alabama, Alaska, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, West Virginia, Wyoming and Wisconsin. Several industry groups such as the Utility Air Regulatory Group also support blocking EPA from finalizing the rules.

EPA is backed by California, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, as well as environmental groups like the Sierra Club.

Rulings in Murray Energy Corp. v. EPA and West Virginia v. EPA are expected later this year.