Nine AGs join Murray suit against EPA

WHEELING – Nine attorneys general have joined Murray Energy Corp.’s lawsuit against the U.S. Environmental Protection Agency over proposed regulations on carbon emissions from coal-fired power plants.

The attorneys general represent West Virginia, Ohio, Kentucky, Alabama, Alaska, Nebraska, Oklahoma, South Carolina and Wyoming. They argue in their friend of the court brief, filed Wednesday in the U.S. Court of Appeals for the District of Columbia Circuit, that the EPA already regulates existing air emissions from power plants under the federal Clean Air Act through a rule released Feb. 16, 2012. The attorneys general contend the Clean Air Act prohibits double regulation of emissions by the EPA.

The EPA has said the prohibition only exists due to a clerical error in the 1990 Amendments to the Clean Air Act, and that the agency does, indeed, have the authority to impose the new rule.

“As EPA acknowledges, the proposed rule violates the unambiguous terms of Section 111(d) (of the Clean Air Act) as it appears in the U.S. Code because the proposal seeks to impose impermissible double regulation on existing coal-fired power plants,” the brief reads. “… EPA’s entire argument (related to the clerical error) is based upon a fallacy.”

The attorneys general further argue the court previously has noted that clerical errors in modern legislation are common, “but if EPA’s novel argument here is accepted, numerous provisions of the U.S. Code would be called into doubt, as clerical errors that have been long excluded from the Code would now be creatively read as grievous ambiguties.”

The EPA’s proposed rule seeks to reduce carbon emissions from fossil fuel-fired electric utilities by 30 percent by 2030.

The attorneys general also note that the proposed rule, if finalized, leaves little time for the states to prepare. “EPA’s assertion of authority denied it by Congress imposes real harm on the states now: states have to undertake huge amounts of burdensome work now to develop plans to meet the anticipated rule and cannot wait for the final rule and still have any chance of meeting the indicated deadlines,” the brief states. “Only this court’s prompt intervention can stop this ongoing harm.”

The initial lawsuit, filed earlier this month by Murray Energy, also argues that the proposed rule is not permissible under current law.

“We were impressed with the state attorneys generals’ brief and believe that it further underscores the immediate harm being caused by these disastrous cap-and-tax regulations,” Murray Energy said in a statement.

The rule announced June 2, known as the Clean Power Plan, sets state-specific standards for carbon emissions and charges each state with submitting a plan by 2018 at the latest to meet those standards. Opponents say the technology needed to achieve the standards isn’t commercially available and will lead to the closure of more power plants.

According to Murray, 421 power plants have already closed or have been identified for closure as a result of EPA regulations. Coal production in the central Appalachian region has declined by 43 percent since 2008, the company said.