EPA Given Deference on Coal-Mine Regulation

     (CN) – The U.S. Environmental Protection Agency properly declined to list coal mines as dangerous sources of air pollution, the D.C. Circuit ruled.
     In applauding the decision, EPA spokeswoman Enesta Jones noted the agency’s commitment to addressing greenhouse gas emissions, and that this process involves “a common-sense, step-by-step approach that focuses on the largest sources and sectors, and is based on science and the law.”
     Section 7411 of the Clean Air Act requires the EPA to publish a list categorizing stationary sources of air pollution that endanger the public health and establish performance standards for each category.
     In June 2010, Earthjustice petitioned the EPA on behalf of WildEarth Guardians and other groups to include coal mines as stationary sources. Among other things, they argued that the EPA must develop performance standards for coal mines because coal mines produce 10.5 percent of the country’s methane emissions as well as nitrous oxides and particulate matter, which are regulated by the EPA’s National Ambient Air Quality Standards (NAAQS).
     The EPA denied the petition by letter in April 2013, stating that it had to prioritize its actions because of prior commitments. Citing staff and budgetary constrains, the agency said it could not at that time commit resources to determine if coal mines should be subject to Clean Air Act regulation.
     Transportation and electricity systems account for more than 60 percent of greenhouse gas emissions in the U.S., while coal mines represent around 1 percent of total emissions, the agency added. It did indicate, however, that it might be able to consider coal mines as stationary sources in the future.
     WildEarth Guardians promptly filed suit, arguing that the EPA’s refusal to list coal mines violated the Clean Air Act and endangered the public health.
     The group also argued that the EPA’s reasons for denying its petition did not “conform to the authorizing statute” established in Massachusetts v. EPA. In that case, the Supreme Court found that the EPA can deny petitions for rulemaking only if it determines that greenhouses gases do not affect climate change or if it has a “reasonable explanation” as to why it chooses not to make that determination.
     The D.C. Circuit sided with the EPA on Tuesday, finding that its reasons for denying the environmentalists’ petition were adequate.
     “EPA’s reasons for denying the petition for rulemaking in this case differ in important respects from the reasons it proffered in Massachusetts v. EPA,” Senior Judge Harry Edwards wrote for a three-judge panel.
     Massachusetts involved an erroneous conclusion by the EPA that it did not have the authority to regulate carbon-dioxide emissions from cars as an air pollutant. Here, however, the agency did not reach any conclusions on its ability to regulate emissions from coal mines, the 13-page ruling states.
     The Supreme Court in Massachusetts also shot down the EPA’s arguments that its regulation of motor-vehicle emissions would interfere with Executive Branch programs that address global warming and would hurt negotiations with developing countries to reduce emissions. The court found that these reasons had nothing to do with whether the emissions contributed to climate change and were a poor “justification for declining to form a scientific judgment.”
     “In this case, EPA’s reasons for denying the petition for rulemaking are entirely consistent with the agency’s duty under § 7411,” Edwards wrote. “The statute says that the Administrator shall ‘from time to time’ revise the list of categories of stationary sources of air pollutants. … In our view, the statute affords agency officials discretion to prioritize sources that are the most significant threats to public health to ensure effective administration of the agency’s regulatory agenda.”
     Rather, it is “consistent with the statutory objective of reducing hazardous emissions overall” for the EPA to focus on more significant sources of air pollutants before addressing coal mines, according to the ruling.
     “Diverting resources from regulating the most significant sources of air pollution to regulate less-significant sources might increase overall emissions,” Edwards wrote. “This would be contrary to the agency’s mandate under § 7411.”
     Since the EPA has shown that it is diligently implementing its Clear Act duties amid staff and budgetary restraints, the court declined to “second-guess” those priorities.
     “Therefore, pursuant to the extremely limited and highly deferential standard that governs our review of an agency’s denial of a rulemaking petition, we deny the petition for review,” Edwards wrote.
     Judges Thomas Griffith and Arthur Raymond Randolph joined in the opinion.
     WildEarth Guardians staff attorney Samantha Ruscavage-Barz has not returned a request for comment.
     Justice Department attorney Kim Smaczniak represented the EPA, along with co-counsel Scott Jordan and Acting Assistant Attorney General of the Environmental Resources Division Robert Dreher.
     Also Tuesday, the D.C. Circuit affirmed dismissal of Coal River Energy’s suit against the Department of the Interior regarding a new fee regulation.
     Under the Surface Mining Control and Reclamation Act, mine operators must pay a fee for each ton of coal produced when it is sold or used. The money collected is then used to fund restoration efforts for land damaged by coal mining.
     Coal River challenged the rule under the Reclamation Act, arguing that it is unconstitutional to apply the fee to coal sold for export. It also claimed that the 60-day statutory deadline for challenging a rule should not apply to it because it was formed after the regulation was promulgated.
     A federal judge previously deemed the suit untimely, and a three-judge panel affirmed Tuesday.
     “Coal River’s interpretation would essentially nullify the sixty-day limitation for challenges to rules under § 1276 (or any similar statute,” Senior Circuit Judge Laurence Silberman wrote for the panel (parentheses in original).
     “That is so because there might be a number of new coal companies that could come into existence over a period of time after the initial sixty-day period passed. Under Coal River’s interpretation, if each such company could challenge the regulations at any time, it would certainly frustrate Congress’s objective that facial challenges to the regulation be confined to a limited period (the coal industry might take advantage of such a situation to fund new litigation, perhaps for a smaller company),” the 9-page ruling continues (parentheses in original).
     Coal River also failed to show that the inability of the the Court of Federal Claims to grant declaratory relief made that venue inadequate.
     Silberman called the argument “rather half-hearted.”
     “Indeed, a suit for declaratory relief seems decidedly inferior, since it would provide only prospective relief, whereas a suit for damages can provide both prospective and retroactive relief,” he wrote. “Coal River’s real problem is that the route is closed, not by structural impediments, but because the Federal Circuit has already ruled against its position.”

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