En Banc Panel at D.C. Circuit Hears Seven-Hour Oral Argument in Challenge to Clean Power Plan
On September 27, 2016, the United States Court of Appeals for the District of Columbia Circuit heard oral argument before an en banc panel in West Virginia v. EPA , a case involving challenges to the U.S. Environmental Protection Agency's ("EPA") 2015 rule known as the Clean Power Plan ("CPP"). The CPP regulates carbon dioxide emissions from existing power plants. Oral argument lasted approximately seven hours, with the court hearing from various advocates for the states, industry, and EPA.
Argument was divided according to five of the major topics addressed in the briefing: statutory issues other than Section 112 of the Clean Air Act; Section 112; constitutional issues; notice issues; and record-based issues not submitted on the briefs.
T he D.C. Circuit seemed most receptive to the petitioners' statutory arguments. In particular, the petitioners argue that the Clean Air Act provision EPA relied upon in promulgating the CPP, Section 111(d), applies to individual sources, and that the CPP is unlawful because the rule's performance rates cannot be achieved by any single source. Instead, the CPP necessitates "generation-shifting," requiring owners or operators of existing sources to comply by subsidizing other, lower-emitting generation rather than by improving emission performance at their own sources. If the court rules in favor of the petitioners on these grounds, it may not reach many of the other arguments. The court's opinion is not expected until late 2016 or early 2017. Additional information regarding the oral argument in West Virginia v. EPA is available here.
Environmental Group Sues EPA Over Ocean Acidification
On September 8, 2016, the Center for Biological Diversity ("Center") filed a complaint against EPA in the United States District Court for the District of Columbia (No. 16-1791), alleging that EPA failed to comply with its obligations under the Administrative Procedure Act ("APA") to respond to the plaintiff's petition requesting amendments to water quality criteria and the publication of additional guidance under Section 304 of the Clean Water Act ("CWA"), 33 U.S.C. § 1314, to address ocean acidification that the plaintiff contends is caused by greenhouse gas emissions.
In the complaint, the plaintiff alleges that it filed its petition on April 17, 2013, and that EPA's failure to respond for more than three years violated the agency's obligation under the APA to respond to petitions within a reasonable timeframe. The Center's petition was premised on the claim that carbon-dioxide-induced ocean acidification "is drastically transforming the chemistry of our oceans and the health of its ecosystems." The Center attributes ocean acidification to the burning of fossil fuels, on the theory that as the oceans absorb carbon dioxide, the waters become more and more acidic. The Center contends that the oceans absorb approximately one-third of carbon dioxide emissions and that seawater is 30 percent more acidic today compared to pre-industrial levels.
According to the Center, acidic seawater has a serious detrimental impact on marine ecosystems. For example, the Center alleges that acidic seawater erodes and hinders the development of shells and exoskeletons in marine invertebrates. Damage to these populations, in turn, negatively affects the entire marine food chain.
In attempting to compel EPA to take action, the Center cites Sections 304(a)(1) and 304(a)(2) of the CWA, which direct that EPA "shall" develop and publish, and "from time to time thereafter revise" water quality criteria "accurately reflecting the latest scientific knowledge" on the effects of the presence of pollutants in the water on the health and welfare of the biological ecosystem. The Center alleges that scientific evidence supports that current water quality criteria are inadequate to protect water quality and ecosystems from the effects of ocean acidification. According to the Center, EPA acknowledged as much in 2010 when it stated that it would publish guidance regarding ocean acidification. To date, no such guidance has been published by EPA.
The Center therefore requested that the district court declare that EPA has violated its duties under the APA and order the agency to respond to the Center's petition. Because the matter would still be in its early administrative stages at EPA, even if the district court awards the Center the relief it seeks, the precise nature of the water quality criteria (if any) will not emerge until after EPA responds to the Center's petition. EPA has not yet filed its response to the complaint.
Environmental Groups Challenge Pipeline Approval Based on FERC's Alleged Failure to Adequately Consider Climate Change Impacts
On September 21, 2016, three environmental groups filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit, challenging the Federal Energy Regulatory Commission's ("FERC") approval of the Southeast Market Pipelines Project ("Project"). Sierra Club v. Fed. Energy Regulatory Comm'n, No. 16-1329. The Project consists of three separate but interconnected natural gas transmission pipeline projects to be constructed in Alabama, Georgia, and Florida to serve the growing incremental demand for natural gas in the southeast United States.
The petitioners filed their preliminary statement of issues on October 24, 2016. Among other things, the petitioners intend to argue that FERC violated the National Environmental Policy Act by failing to analyze the climate impacts of the Project, including the effects of greenhouse gas emissions. Sierra Club previously issued a press release contending that the greenhouse gas methane will be released during gas extraction and transmission activities, and that the power plants served by the Project will emit greenhouse gases and foreclose alternative cleaner energy options such as wind and solar. Contemporaneous with filing the statement of issues, the petitioners moved to stay FERC's approval of the project and to expedite review by the D.C. Circuit on an emergency basis. The petitioners asserted that, absent such relief, the Project would be constructed and placed into service before the D.C. Circuit could decide the petitioners' claims.
The D.C. Circuit recently granted unopposed motions to intervene filed by companies that received FERC approval for each of the three separate portions of the Project and two electric utilities operating in Florida that will be served by the Project. A nonprofit coalition of utilities also recently filed a motion to participate as amicus curiae in support of FERC. FERC and the intervenors have filed responses opposing the request for stay and expedited review, emphasizing the need for natural gas from the Project to service consumers. The petitioners' reply is due on November 10, 2016. We will continue to monitor the case for significant developments.
EPA Moves for Summary Judgment in Murray Energy's "Coal Jobs" Lawsuit
As first reported in the Spring 2015 issue of The Climate Report, in March 2014, Murray Energy Corp. ("Murray Energy") and 11 of its subsidiaries sued EPA in the Northern District of West Virginia federal court, alleging that EPA ignored its obligation to consider the consequences of Clean Air Act ("CAA") regulations on job losses and displacements in the coal industry. Murray Energy Corporation et al. v. Administrator of EPA, No. 5:14-cv-00039. In its complaint, Murray Energy proclaimed EPA's administration and enforcement of the CAA as a "War on Coal" that was "causing coal mines to close, costing hard-working Americans their jobs, and shifting employment away from areas rich in coal resources to areas with energy resources preferred by [EPA]." Murray Energy argued that EPA failed to comply with Section 321(a) of the CAA, which requires the EPA Administrator to "conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of [the CAA] and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement."
On May 2, 2016, EPA filed a motion for summary judgment, urging the court to immediately conclude the case and avoid trial, which was scheduled to begin on July 19, 2016, but was postponed by the court until a date to be later determined by the court. EPA moved for summary judgment on three alternative bases: (i) Section 321(a) does not set forth a nondiscretionary duty enforceable through the CAA citizen-suit provision; (ii) Murray Energy did not meet its burden at the summary-judgment stage to establish facts demonstrating standing; and (iii) EPA conducted the evaluations required in Section 321(a). EPA argued that the record in the case was sufficiently robust for summary adjudication, noting the "millions of dollars of public funds to review and produce hundreds of thousands of documents over the course of tens of thousands of hours," that there had been "a dozen depositions," and that discovery had "consumed nearly eleven months." In its supporting memorandum, EPA further contended that Murray Energy's theory of economic injury was "based on the vague notion of a 'reduced market for coal' that is undefined and lacks any parameters."
On August 19, 2016, Murray Energy filed its opposition to EPA's motion, arguing that: (i) EPA's main argument—that Section 321(a) is discretionary—had been rejected twice previously in the suit, and EPA offered nothing new on summary judgment; (ii) the court had already found three separate grounds for Murray Energy's standing, and EPA raised no legitimate dispute with the court's reasoning; and (iii) EPA offered no "cogent explanation" on how it was complying with Section 321(a).
The U.S. Chamber of Commerce and the State of West Virginia (in conjunction with 12 other states) filed amicus curiae briefs in support of Murray Energy on August 24 and September 7, 2016, respectively. EPA filed its reply brief on September 9, 2016. The court has not yet set a date for oral argument.