American Oil and Gas Reporter - November 2015 - 14

IndustryDigest
States, Industry Group
File Petitions To Stop
EPA Clean Power Plan

CHARLESTON, W.V.-The race to
the courthouse to head-off the Obama
administration's rule intended to cut
carbon dioxide emissions from power
generating facilities has begun. On the
day the Environmental Protection
Agency published its Clean Power Plan
in the Federal Register, Oct. 23, 24
states led by West Virginia filed a
petition for review as well as a motion
to stay implementation in the U.S.
Court of Appeals for the District of
Columbia.
Separately, the American Fuel &
Petrochemical Manufacturers filed a
similar petition for review and motion
to stay in the D.C. Circuit along with 15
other business and industry
associations, including the U.S.
Chamber of Commerce and the
National Manufacturers Association.
And published reports say several
federal lawmakers, including Senate
Majority Leader Mitch McConnell, RKy., and House Energy and Power
Subcommittee Chairman Ed Whitfield,
R-Ky., have announced plans to file a
Congressional Review Act resolution in
an attempt to stop the rule.
"The Clean Power Plan is one of the
most far-reaching energy regulations in
this nation's history," declares West
Virginia Attorney General Patrick
Morrisey in a statement released by his
office. "West Virginia is proud to be
leading the charge against this
administration's blatant and
unprecedented attack on coal."
Joining West Virginia's motions are
Alabama, Arkansas, Colorado, Florida,
Georgia, Indiana, Kansas, Kentucky,
Louisiana, Michigan, Missouri,
Montana, Nebraska, New Jersey, Ohio,
South Carolina, South Dakota, Texas,
Utah, Wisconsin, Wyoming, the
Arizona Corporation Commission, and
the North Carolina Department of
Environmental Quality.
Morrisey says the states' petition
contends the Clean Power Plan exceeds
EPA's authority by "unlawfully forcing
states to fundamentally alter state
resource planning and energy policy by
shifting from coal-fired generation to
other sources of power generation, with
a significant emphasis on renewable
sources."
14 THE AMERICAN OIL & GAS REPORTER

A lawsuit West Virginia filed with
12 other states when EPA proposed the
rule explained that the Clean Air Act
limited EPA to simply requiring states
to install pollution-control technologies
(AOGR, September 2015, pg. 160). That
lawsuit was found to be premature
because EPA had not yet published the
Clean Power Plan (AOGR, October
2015, pg. 18).
Also like the earlier lawsuit,
Morrisey says, the Oct. 23 motions
contend the rule is illegal because it is
based on CAA Section 111(d), and EPA
already regulates coal-fired power
plants under Section 112, the CAA's
hazardous air pollutant program. The
states contend 1990 amendments to the
Clean Air Act expressly prohibit such
double regulation.
AFPM's motion argues the Clean
Power Plan "rests entirely on a single
phrase plucked from a rarely used
provision authorizing EPA to establish
'a procedure' for states to issue
'standards of performance' for existing
sources," later adding that "Section
111(d) provides no authority for EPA to
'aggressively transform' the domestic
electricity sector to achieve EPA's
vision of how that sector should be
constituted."
"EPA's Clean Power Plan stands
unparalleled in its legal overreach,"
states AFPM President Chet Thompson.
"The agency has veered from its
statutory authority in an attempt to
control electricity production by forcing
the use of more expensive energy
sources." ❒

Company Not Liable For
Inadvertent Bird Deaths,
5th Circuit Court Rules

FORT WORTH-Despite the U.S.
Fish & Wildlife Service's continued
insistence that all bird fatalities under
the Migratory Bird Treaty Act (MBTA)
violate the law, a federal court has ruled
that act's protection only applies to
hunting or poaching, not unintentional
deaths.
Ruling in United States of America v.
CITGO Petroleum Corp. and CITGO
Refining and Chemicals Co. LP, the
U.S. Court of Appeals for the 5th
Circuit said a district court
misinterpreted the century-old statute as
covering unintentional bird kills.
The ruling also exonerated the

companies from violations of the Clean
Air Act alleged to have occurred at the
same Corpus Christi, Tx., refinery as
the bird deaths. According to court
documents, the 5th Circuit also ruled
CITGO was innocent on charges that its
failure to place a roof over what the
U.S. Environmental Protection Agency
termed an oil/water separator violated
the Clean Air Act. The judges upheld
the company's contention that the unit
was an equalizer tank and thus not
subject to the CAA.
Congress passed the MBTA in 1918,
making it unlawful "to pursue, hunt,
take, capture, kill, attempt to take,
capture or kill . . . any migratory bird,"
in violation of regulations or permits,
the court filings note. Violators are
subject to imprisonment and/or a
maximum $15,000 fine.
According to the court documents,
the 5th Circuit held that a taking is
limited to deliberate acts done directly
and intentionally to migratory birds.
The judges said they based their
conclusion on the statute's text, its
common law origin, and a comparison
with other relevant statutes.
The 5th Circuit determined a "take"
must be done affirmatively, and does
not apply if done accidentally or by
omission. The judges pointed out that
Congress knew how to expand that
definition, saying the Endangered
Species Act and the Marine Mammal
Protection Act both explicitly define the
term to include harassing and harming.
The ruling also notes that as many as
976 million birds die annually from
running into windows; communication
towers kill another 4 million-5 million
each year; and cars kill another 60
million annually. Even domesticated cats
violate the law, killing 39 million birds
in Wisconsin alone, the judges note.
"If the MBTA prohibits all acts or
omissions that 'directly' kill birds, where
bird deaths are 'foreseeable,' then all
owners of big windows, communication
towers, wind turbines, solar energy
farms, cars, cats and even church
steeples may be found guilty of violating
the MBTA," the court reasons. ❒

Coming In December

Coverage of IOGA NY's annual
meeting, Oct. 21-22 at the Buffalo
Marriott Niagara in Amherst, N.Y.
American Oil and Gas Reporter - November 2015

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