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April 25 — Coal giant Murray Energy Corp. asked a federal appeals court to review the Environmental Protection Agency's final supplemental finding that it is “appropriate and necessary” to regulate power plants under Section 112 of the Clean Air Act.
Murray Energy filed its lawsuit April 25, the first day of a 60-day judicial period for filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit. The judicial review period opened following the EPA's publication of the finding the Federal Register (79 DEN A-3, 4/25/16).
The supplemental finding (RIN 2060-AS76) was issued to address a 2015 Supreme Court ruling that held the agency erred when it failed to consider cost in its original “appropriate and necessary” determination, which triggered promulgation of the Mercury and Air Toxic Standards for power plants (Michigan v. EPA, 135 S. Ct. 2699, 2015 BL 207163, 80 ERC 1577 (2015)).
The supplemental finding took two approaches to considering cost in response to the Michigan v. EPA ruling: a preferred approach that weighed different cost metrics against prior EPA conclusions on health and environmental hazards and a secondary approach that involved a full cost-benefit analysis that showed the estimated $9.6 billion annual cost of the rule is outweighed by as much as $90 billion in related benefits. Attorneys predicted that states and industry organizations that opposed the Mercury and Air Toxics Standards in past litigation will attempt to use the supplemental finding as an avenue to challenge the EPA's long-standing practice of considering the co-benefits of regulation in its cost-benefit analyses (52 DEN B-1, 3/17/16).
Murray Energy's lawsuit did not include any explanation of the company's reason for filing the lawsuit. When asked for an explanation, a Murray Energy spokesman provided an e-mail statement that described the EPA's supplemental finding as “a vain attempt to justify the unjustifiable.”
“This final ‘finding' is flagrantly arbitrary, and fails to comply with the law and with the Supreme Court’s mandate,” Murray Energy said. “Indeed, the Obama EPA plainly refuses to consider the costs of its decision in light of the reasonable and available alternatives to inflexible and cost-blind federal standards that Murray Energy identified in its comments. This is a fatal error that will require the courts to strike down this finding.”
Murray Energy's comments on the proposed version of the finding argued that the EPA's cost analysis failed to adequately assess the regional and industry-specific effects of the MATS rule, including the effect of the rule's compliance costs on coal-producing regions and areas that rely on coal-fired power plants for electric generation.
Graham McCahan, senior attorney for the Environmental Defense Fund, said in a statement issued in response to Murray Energy's lawsuit that the EPA's supplemental finding confirms that the MATS rule is a “cost-effective step” to address emissions of mercury and other toxic air pollutants. The EDF, which intervened in previous litigation over the MATS rule, will continue to offer “vigorous support” for the standards, McCahan said.
The deadline for challenging the EPA's supplemental finding is June 24.
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The petition for review in Murray Energy Corp. v. EPA is available at http://src.bna.com/enJ.
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