Environmental -- 2015

West Virginia v. EPA   (D.C. Circuit)

Challenging EPA's new round of greenhouse gas regulations for utilities

The NAM and 9 other groups filed an amicus brief in a case brought by a coalition of 12 states seeking to hold unlawful a 2011 settlement agreement between the EPA and some environmental groups which committed the agency to propose rules to regulate greenhouse gases from power plants. EPA proposed the rules in 2014, and this challenge began in July. Although the agency has not finalized its rules, this suit challenges the underlying settlement agreement.

The EPA rules impose new compliance costs on utilities that already must bear $9.6 billion per year in costs under the 2012 rule on hazardous air pollutants. Manufacturers of energy inputs will see sales decline precipitously as power plants cut costs or shut down. Manufacturers of all kinds, as purchasers of electricity, will see dramatic cost increases and electric service will become less reliable.

In our amicus brief, we argued that EPA may not regulate power plants under Section 111(d) of the Clean Air Act because power plants are already regulated under Section 112, and the law specifically prohibits dual regulation under both sections. EPA tried to manufacture ambiguity by relying on an acknowledged congressional drafting error. EPA should not be entitled to judicial deference when the statutory language itself is clear.

A similar case, Murray Energy Corp. v. EPA, is also pending in the D.C. Circuit, involving the same questions but challenging the proposed rules directly. We filed an amicus brief in that case on December 22. Oral arguments in both cases were held on April 16, 2015.

On June 9, 2015, the D.C. Circuit rejected West Virginia’s argument concerning the underlying settlement agreement and ruled for the EPA. The court held that West Virginia lacked standing to sue because the settlement agreement only set a timeline for the EPA to decide whether or not to issue a final rule and therefore did not create an injury in fact. Additionally, a suit to challenge such a settlement agreement must be filed within 60 days of the agreement’s publication in the Federal Register rather than more than two years later, as was the case here.

Related Documents:
NAM amicus brief  (December 10, 2014)


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