Opponents of EPA’s power plant rule launch another attack lawsuit

Source: Jean Chemnick, E&E reporter • Posted: Tuesday, August 5, 2014

Coal-dependent states have launched another suit against U.S. EPA aimed at killing its proposed greenhouse gas rule for existing power plants, but environmentalists say the challenge is more likely to earn them press coverage than a legal result.

West Virginia’s Attorney General Patrick Morrisey (R) filed the petition in federal court in Washington, D.C., on Friday with the backing of 11 other states. In it, the states took aim at a settlement agreement reached in December 2010 between EPA and state and environmental plaintiffs in which EPA agreed to propose rules for new and existing power plants by July 26, 2011, and finalize them by May 26, 2012.

The settlement with New York state, the Natural Resources Defense Council and other litigants should be invalidated, West Virginia and its allies argued, because the Clean Air Act prohibits EPA from promulgating a rule for existing facilities under Section 111(d) of the act if it has already regulated the same sources under Section 112 — even for another set of emissions.

This argument, which arises from an unresolved discrepancy between the House and Senate versions of the Clean Air Act Amendments of 1990, has been cited numerous times before by opponents of EPA’s flagship carbon dioxide rule — which is now open for public comment and is due to be finalized by June 1 of next year. Murray Energy Corp. filed a petition with the U.S. Court of Appeals for the District of Columbia Circuit on June 18 citing the same argument, and nine states later joined in that suit, including West Virginia (Greenwire, June 19).

Scott Segal, director of the Electric Reliability Coordinating Council, summarized the states’ argument this way: “While the 2010 settlement agreement did commit the agency to a rulemaking on greenhouse gas emissions, the settlement agreement cannot bind the agency to do something it does not have the legal authority to do. Since it is now clear EPA intends to proceed under Section 111(d), and that the use of the section may in fact be pre-empted by the agency’s action in [the 2012 hazardous emissions rule], the settlement agreement would not be binding if the attorneys general succeed.”

But environmentalists say challenges to EPA’s proposal seem to be part of opponents’ public relations campaign against the rule and are not calculated to be successful in the courts.

“If you’re willing to pay the filing fee, you can get yourself a news story,” said David Doniger, director of the climate and clean air program at NRDC.

For one thing, courts have ruled in the past that rules cannot be challenged until they are final. For another, the statute provides a 60-day window for final agency actions to be challenged — and EPA finalized this settlement agreement in 2011, only to miss all of its deadlines.

The settlement agreement is currently lapsed, and EPA is now promulgating greenhouse gas rules for new and existing power plants under deadlines set last year by President Obama as part of his Climate Action Plan, which is not directly tied to the settlement the states are challenging.

“But even if the settlement agreement were behind EPA’s current actions, it would be far too late for the [attorneys general] to challenge it,” said Doniger in a blog post over the weekend. “They didn’t show up. It’s too late now to challenge the settlement.”

The Clean Air Act does allow for challenges to be brought against the agency if new grounds develop after the 60-day period closes. Segal said the attorneys general are suing now because it has only recently come to light that the 1990 law prohibits the agency from regulating the same sources under both Section 112 and 111. But environmentalists say the argument is not legally sound, and the law has not been changed since 1990 — long before EPA reached its settlement with New York and other plaintiffs in late 2010. So there are no “after arising grounds” that enable challenges to be brought against the settlement argument now, they say.

But while he predicted the challenge would be thrown out almost immediately, Doniger said the rule’s opponents seemed to be bent on keeping their opposition in the spotlight in the hopes that Congress would step in to kill the proposed rule.

“If you’re trying to get the Congress to get jazzed up about this, you have to show you’re doing your utmost in every other forum,” he said.