Legal sparring over controversial rules affecting electricity shows the oil and gas industry much about regulatory activism.
With mixed success, the US Environmental Protection Agency is defending in the Supreme Court two of its aggressive regulations aimed at discouraging the use of coal for power generation.
When EPA issued its final Mercury and Air Toxics Standard (MATS) rule last year, the inevitable legal challenge already was becoming moot. The rule essentially required compliance before cases could be adjudicated.
By the time the Supreme Court found, last December, that EPA hadn't properly considered cost and remanded the case, dozens of coal-fired plants had been closed or converted. Generating companies absorbed possibly unnecessary cost to avoid the risk of noncompliance.
Opponents of EPA's Clean Power Plan learned from that experience. Their challenge, after publication of the final rule last October, included a request that implementation be suspended-or stayed-while courts deliberated.
The Supreme Court's approval of the stay on Feb. 9 suggests jurists question EPA's authority, under the Clean Air Act, to require state-by-state greenhouse gas cuts averaging 25% from 2005 levels in 2022 and 32% by 2030.
Since then, more than 200 lawmakers have submitted a friend-of-the-court brief declaring Congress didn't authorize EPA to implement the CPP.
Emboldened by these developments, opponents of the mercury rule petitioned for a stay of implementation while EPA works to fix the cost problem.
But Chief Justice John Roberts, acting solo on Mar. 3, rejected that move.
He might have worried about taking the case to a court divided 4-4 between liberal and conservative justices after the Feb. 13 death of conservative Antonin Scalia.
How the new balance might affect future decisions about the CPP and MATS is of course uncertain.
What is certain is the eagerness of EPA not only to stretch the limits of its statutory authority but also to circumvent judicial review.
With regulations EPA is writing for oil and gas operations, similar tricks can and should be expected.
About the Author
Bob Tippee
Editor
Bob Tippee has been chief editor of Oil & Gas Journal since January 1999 and a member of the Journal staff since October 1977. Before joining the magazine, he worked as a reporter at the Tulsa World and served for four years as an officer in the US Air Force. A native of St. Louis, he holds a degree in journalism from the University of Tulsa.