On the very same day that EPA published its proposed power plant
rule, Murray Energy Corp. ("Murray") filed a petition for
extraordinary writ with the D.C. Circuit, seeking to block
EPA's proposed standards. In re: Murray Energy Corp.,
No. 14-1112 (D.C. Cir.). Under the proposed rule, EPA established a
2030 deadline for cutting carbon dioxide emissions by 30 percent for
existing coal-fired power plants. In its petition, Murray claims
that the proposed rule constitutes unlawful "double
regulation" by EPA in excess of its delegated powers by
mandating state-by-state emission standards for power plants that
are already subject to a national emission standard. A week after
Murray filed its petition, nine states, led by the attorney general
of West Virginia, filed an amicus brief with the D.C. Circuit in
support of Murray.
In February 2012, EPA promulgated a national emission standard for
power plants pursuant to EPA's authority under Section 112 of
the Clean Air Act. Challenges to that standard were rejected by the
D.C. Circuit. See White Stallion Energy Ctr. LLC, No.
12-1100 (Apr. 15. 2014). Despite the existence of this national
emission standard, on June 18, 2014, EPA published a proposed rule,
under Section 111(d) of the Clean Air Act, requiring states to
design and issue state-by-state emission standards for greenhouse
gas emissions. According to Murray and the nine states, this second
set of regulations is expressly prohibited by the Clean Air Act.
Section 111(d)(1) of the Clean Air Act limits EPA's authority
to mandate state-by-state emission standards for existing power
plants to emissions that are not "from a source category which
is regulated under section 112" of the Act. In other words,
because existing power plants are already subject to a national
emission standard promulgated under Section 112, EPA is prohibited
from mandating state-by-state emission standards for those same
power plants.
To overcome this seemingly clear proscription, in its proposed
rule, EPA asserts that Section 111(d) contains an ambiguity that
allows the agency to subject the statute to its own reasonable
interpretation. The EPA's claim turns on apparent
inconsistencies in Section 111(d) between House and Senate versions
of 1990 amendments to the Clean Air Act. The House version
prohibited double regulation of source categories already
regulated under Section 112, while the Senate version prohibited
EPA double regulation of emissions of pollutants regulated
under Section 112. Both versions were inadvertently included in the
final bill as published in the Statutes at Large.
Murray and the nine states counter that the EPA's claim of an
ambiguity is baseless and predicated on a clerical error that
cannot alter the plain terms of Section 111(d) in the U.S. Code,
which contains only the House version. The two versions of Section
111(d) retained in the Statutes at Large were simply a substantive
amendment (the House version) and a clerical amendment (the Senate
version). According to Murray and the states, an erroneous clerical
entry that conflicts with a substantive provision of that statute
cannot create an ambiguity. Without an ambiguity, they argue,
EPA's regulatory action is illegal and should be struck
down.
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