Abby L. Harvey
GHG Monitor
4/10/2015
A federal court is set to hear arguments next week concerning a suit challenging the Environmental Protection Agency’s authority to propose carbon emission standards for existing coal-fired power plants. The lawsuit, brought by Murray Energy, argues that the EPA has acted beyond its authority in issuing the proposed rule. The rule would set federally determined emissions reduction targets for each state and requires the states to develop action plans to meet those targets. The basis of Murray’s claim hinges on the idea that the EPA misinterpreted the section of the Clean Air Act under which the proposed rule was established. Murray claims that while that section of the Clean Air Act, 111(d), grants EPA authority to require states to regulate existing-source emissions, it excludes the regulation of air pollutants emitted from a source that is already regulated under Section 112. Coal-fired power plants are already regulated under Section 112 of the Clean Air Act. The EPA has argued that an error in the amendments to the Clean Air Act has created an ambiguity, allowing the agency to develop the regulations.
Murray has asked the court to halt the rule as, it has argued, the EPA did not have the authority even to propose it and if finalized it will cause harm to the nation’s coal industry. However, the EPA argues that the rule cannot be challenged because it has yet to be finalized and thus any potential harm cited by Murray is only speculation as the final rule could be vastly different than the proposal. “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,” according to an EPA court filing.
Murray has aruged that it is within the court’s jurisdiction to stop the agency under the All Writs Act which states that a court "may issue all writs necessary or appropriate in aid of [its] jurisdiction[] and agreeable to the usages and principles of law." This entry, Murray and their interveners have argued, means that that court may “prohibit an agency from taking an action beyond its power – an ultra vires action – even before that action is final,” the group writes in a petition for extraordinary writ.
