This posts continues our discussion regarding the status of several major recent regulations by the U.S. Environmental Protection Agency (EPA) that target reductions in emissions from the oil, natural gas, and coal industries, and how these regulations will drive increased investment in cleaner and renewable energy. In particular it provides updates to Part 1 in this series on EPA’s Carbon Pollution Standards for New, Modified, and Reconstructed Power Plants and Part 2 on EPA’s Mercury and Air Toxics Standards (MATS).

Carbon Pollution Standards for New, Modified, and Reconstructed Power Plants

As previously discussed, EPA’s October 23, 2015 final rule, Standards of Performance for Greenhouse Gases From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units (80 Fed. Reg. 64,510), has been challenged in the U.S. Court of Appeals for the District of Columbia Circuit. State of North Dakota v. EPA (Consolidated Case No. 15-1381). Responding to a request from several states and industry groups challenging the final rule, the Court recently suspended the briefing schedule and allowed additional parties until July 12 to file petitions for review. During the administrative process, EPA denied several petitions for reconsideration of the final rule. It is expected that many of the parties who had their petitions rejected will file again and their petitions will be consolidated with the current litigation.

Mercury and Air Toxics Standards

On April 25, EPA issued a Supplemental Finding that it is Appropriate and Necessary to Regulate Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility Steam Generating Units, 81 Fed. Reg. 24,420, and affirmed that the MATS rule was appropriate and necessary to regulate air toxics after including a consideration of costs. EPA conducted the cost-benefit analysis and published the Supplemental Finding at the direction of the U.S. Supreme Court. Michigan v. EPA, 135 S. Ct. 2699 (2015). The MATS rule remained in place while EPA considered the associated costs and prepared its findings. The decision to keep the MATS rule in place was appealed to the U.S. Supreme Court by a coalition of 20 states, led by Michigan. Michigan v. EPA, C.A. No. 15-1152. Earlier this month, the Obama Administration and EPA scored a key win when the Supreme Court refused to hear the appeal, thus leaving the rule in place as the Supplemental Finding is challenged in the U.S. Court of Appeals for the District of Columbia Circuit.

The first challenge to the Supplemental Finding was filed on April 25 by Murray Energy Corporation. Murray Energy v. EPA, C.A. No. 16-1127. On June 24, as the window to file petitions for review closed, fifteen states, again led my Michigan, joined Murray Energy and filed a challenge. Michigan v. EPA, D.C. Cir., No. 16-1204. Several additional utilities also filed challenges. The addition of the states and utilities was expected as many of the opponents participated in prior challenges of the MATS rule.