Not a Lexis+ subscriber? Try it out for free.


In re Murray Energy - the First Clean Power Plan Donnybrook

By J. Wylie Donald

This morning found us at the E. Barrett Prettyman Courthouse in Washington, hoping to take in the oral argument before the DC Circuit in the first (of what is certain to be many) challenge to the Clean Power Plan: In re Murray Energy Corp. Murray Energy is the largest privately owned coal company in the country and was joined by another coal company, twelve States and numerous amici. It sued last June and claimed, under the All Writs Act, that it would be irreparably harmed by the immense dislocation to be precipitated by EPA's planned move from coal to natural gas, nuclear power, renewable energy and efficiency (i.e., the Clean Power Plan) and, therefore, the Court should stop EPA's plan in its tracks. The State Intervenors seconded the argument. This looming regulation was like nothing ever seen before and extraordinary relief was required.

But wait! The last time you checked EPA doesn't even have a rule. EPA is still wading through the two million comments it received during the comment period in the rule making. The final rule has not been set down anywhere; all we have is a proposed rule. Further, since there is no final rule isn't Petitioner's beef premature and unripe? Your erudition is to be commended.

As confirmed at argument there is no rule (we won't see it till summer) and the Clean Air Act and numerous precedents establish that, as counsel for EPA eloquently put it, "doesn't EPA get its ordinary opportunity of interpreting the statute"? The Court seemed to buy this. Judge Griffin queried whether they should enter into the requested "morass," where the Court had never done so before. Judge Cavanaugh noted that precisely because the alleged harm is so great that "it is especially important to follow prudential rules." To which Petitioner could only respond: "there's always a first time." If all you are interested in is the odds-on favorite for what is going to happen you can stop reading: the complaint will be dismissed because it is not ripe and the Court does not have jurisdiction.

But if you want to get to the merits, you're going to have to continue on. The merits are rather dry. Both sides have delved deep into the legislative history finding reports of the Senate Managers and the Office of the Law Revision Counsel (cited by Petitioner) and the Congressional Research Service (cited by Respondent) as well as more mainstream sources like House and Senate reports. The impetus for all that research is a small contradiction between the House and Senate versions of an amendment to the Clean Air Act, both of which made it into the enacted bill. Here is how it was summed up by Respondent in its brief:

In the course of overhauling the regulation of hazardous pollutants under section 7412, [enhanced version available to subscribers], Congress also edited section 7411(d), which cross-referenced a provision of old section 7412 that was to be eliminated. Specifically, the pre-1990 version of section 7411(d) obligated EPA to require standards of performance:

for any existing source for any air pollutant (i) for which air quality criteria have not been issued or which is not included on a list published under section [7408(a)] or [7412(b)(1)(A)] . . . .

42 U.S.C. § 7411(d)(1)(A) (1988), [enhanced version available to subscribers]. To address the obsolete cross-reference to section 7412(b)(1)(A), Congress passed two amendments – one from the House and one from the Senate – that were never reconciled. The House amendment replaced the cross-reference with the phrase “emitted from a source category which is regulated under section [7412].” Pub. L. No. 101-549, § 108(g), 104 Stat. 2399, 2467 (1990). The Senate amendment replaced the same text with a cross-reference to section 7412. Pub. L. No. 101-549, § 302(a), 104 Stat. at 2574. Both amendments were enacted into law in the Statutes at Large, which supersedes the U.S. Code if there is a conflict.

What do you do with that? Judge Griffin thinks it is pretty clear. You follow the 5-4 majority opinion in Chevron, U.S.A., Inc. v. Natural Resources Def. Council, 467 U.S. 837 (1984), [enhanced version available to subscribers], and defer to the agency. Professor Lawrence Tribe on behalf of Petitioner disagrees because, in his view, there is no contradiction. The Senate language is "moot, non-executable and inoperative." I can't properly quote Professor Tribe here, which was exactly his point: "The Senate might as well have said S?D!7%a¥{!Z" The Senate provision is thus properly ignored.

EPA was not persuaded. Counsel analyzed the House version and found it ambiguous as well. A reasonable interpretation is that it only addresses the materials EPA has actually regulated, not those it might have regulated, but did not. Other substantive arguments were mustered by both sides as well, as set forth in Petitioner's and Respondent's briefs.

Which leads to the really interesting part of this whole case. Petitioner must have known when it filed that its likelihood of success was minimal - not because its arguments lacked merit, but because the Court just wouldn't hear them. So why bring the case, when it means that you are going to have to lay out all your arguments, and give EPA the roadmap it may use to shape the final rule, and the extra time to figure out how to best respond. Indeed, at oral argument counsel for Petitioner pointed out that EPA had changed its position numerous times.

Two answers suggest themselves. Murray Energy's arguments had already been laid out in its own comments to the proposed rule or somewhere else in the two million comments and so nothing was given up. Or the case is all about leadership and positioning and identifying coalition partners.

Probably it is some of both. One thing is certain, however. Shortly after that summer day when a final Clean Power Plan rule is published in the Federal Register, there will be another lawsuit and this one won't be knocked out on the grounds of ripeness.

    J. Wylie Donald, a partner at McCarter & English, LLP, counsels and litigates for clients on insurance coverage, environmental and products liability matters. Mr. Donald co-chairs the firm's Climate Change and Renewable Energy Practice. He draws on his substantial environmental experience, his prior non-legal technical work, and his deep involvement in risk management to assist clients in understanding and controlling the coming regulatory and non-regulatory impacts of climate change. He has tried cases and argued appeals in the state courts in New Jersey and Maryland, conducted private arbitrations and mediations, and argued motions in federal courts across the nation.

Read more at Climate Lawyers Blog by McCarter & English, LLP.

For more information about LexisNexis products and solutions, connect with us through our corporate site