Abby L. Harvey
GHG Monitor
11/21/2014
Two lawsuits filed by Murray Energy challenging the legality of the Environmental Protection Agency’s proposed carbon emissions standards for existing coal fired power plants have been combined, according to documents filed by the U.S. Court of Appeals for the D.C. Circuit late last week. The suits were filed shortly after the proposed rule, which would set emissions reduction goals for each state and require the states to develop action plans to meet those goals, were proposed in June. The court also set up a schedule for the case which calls for final briefs to be submitted by March 9, 2015. It also ordered that oral arguments be heard on the same date and before the same panel as another case against the regulations, West Virginia v. EPA.
The first of the two consolidated cases is a petition of extraordinary writ, which argued that the proposed regulations would represent an action beyond the EPA’s authority and thus the court could issue a writ to prohibit the agency from finalizing the rule. “This Court is ultimately tasked with judicially reviewing EPA’s mandate. In the ordinary course, that review would follow EPA’s final promulgation of the mandate. 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,” the June 18 petition says.
The second case, a petition for judicial review, argues that the proposed rule would result in “double regulation” under the Clean Air Act. The EPA has had success in the past calling for the dismissal of such cases as only final rules are subject to review. Murray Energy contends that the EPA’s action of proposing the rule as a “final action,” as the suit challenges not the rule itself, but the EPA’s authority to make the rule. “EPA has taken a final action to the extent that EPA has initiated a rulemaking without the authority to do so and has stripped power plants of their statutorily guaranteed regulatory immunity from the Section 111(d) program as sources that are already regulated under the Section 112 program,” the August 15 filing states, further arguing that “this petition for review does not challenge the substance of a proposed rule. Rather, this petition for review challenges whether EPA had any authority to initiate a rulemaking at all when doing so violates an express prohibition and unlawfully strips power plants of their regulatory immunity.”
EPA Files Motion to Dismiss
The EPA filed a motion to dismiss the second suit in October, arguing that because the rule is only proposed, EPA has not taking “final action,” and that the concerns raised in the Murray suit will be considered before the agency makes a final action. “Because the Agency publication challenged by Murray is only a proposed rule reflecting proposed legal interpretations and technical analysis, by definition it does not represent EPA’s final determination with respect to the matters addressed. EPA is soliciting public comment on every issue that Murray would have the Court prematurely review in this case, and EPA has not yet had the opportunity to respond to those comments and make its final legal and technical determinations. While EPA could ultimately take final action to adopt the Proposed Section 111(d) Rule as a final rule, it also remains possible – until EPA makes a final decision – that EPA may not adopt the proposal or may modify it,” EPA argued.
