EPA seeks dismissal of Murray lawsuit

WHEELING – The U.S. Environmental Protection Agency has asked a federal judge to dismiss a Murray Energy Corp. lawsuit that seeks to overturn the agency’s rules limiting carbon emissions from new coal-fired power plants.

The lawsuit, filed March 24 in the U.S. District Court for the Northern District of West Virginia, alleges the EPA failed to take into consideration the potential impact of the rule on employment and electricity prices. Opponents of the standards, including Murray Energy, say they can’t be met with existing technology and effectively bar the construction of any new coal-fired power plants.

The Supreme Court has long held that the federal government may only be sued under its own consent, a concept known as sovereign immunity. According to the EPA, the Clean Air Act provides that immunity is waived only if EPA Administrator Gina McCarthy fails to perform a mandatory duty – and the requirement to consider economic impact cited by Murray does not rise to that standard because the law sets no firm deadline for meeting it.

Such actions are “composed of two necessary elements: First, the statute must clearly define an obligatory act that is devoid of the exercise of discretion; second, the statute must require that the act be performed by a specific deadline,” the EPA argues in its motion.

The motion to dismiss also argues that what Murray is seeking – a complete reversal of the EPA rule – is outside the bounds of relief available under the Clean Air Act. Instead, the EPA claims, the statute limits a judge to ordering the EPA to perform the required act – in this case, evaluating the potential impact of its new rule on coal mines and power plants.

Murray Energy officials could not be reached Thursday for comment.

The March lawsuit is one of two Murray Energy – America’s fifth-largest coal producer – has pending against the EPA concerning regulations that affect coal-fired power plants. In June, the company sued the EPA again, this time seeking to overturn proposed rules on existing power plants.

That suit, filed in the U.S. Court of Appeals for the District of Columbia Circuit, claims the rules targeting emissions from existing plants amount to double regulation, which is prohibited under the Clean Air Act. Murray contends the rule violates the law by setting state-by-state standards for power plants which already are subject to national standards for mercury emissions.