"Natural Gas"

EPA Plan May End New Coal Power Plants

By: Roy York, Staff Member
On March, 27, 2012, the Environmental Protection Agency (EPA) released a 257-page rule that forces new coal-fired power plants to emit the same amount of greenhouse gasses as power plants that burn natural gas.[1] Some are saying these regulations will end the use of coal as a source of energy in the United States.[2]

The proposed regulations would require new fossil fuel-fired power plants that produce more than 25 megawatts to meet an output-based standard of 1,000 pounds of CO2 per megawatt-hour. This standard is based on the performance of natural gas technology.[3] The EPA stressed that these regulations only apply to new plants and would not affect existing plants.[4] Further, the regulations would not apply to plants that will begin construction in the next 12 months.[5]
The EPA said new natural gas electric plants would have no trouble meeting the new guidelines with existing technology, but coal-fired plants would need to implement new technology such as carbon capture to reduce their emissions below the threshold.[6] This news has garnered reactions from environmental activists and coal supporters.[7] Some have been critical of the political implications of the move, and have accused President Obama of wanting to end the use of coal in the United States.[8]
Feedback on the document is requested within 60 days of the publication of the proposed rule, and the EPA will hold public hearings on the proposal within 60 days of the publication of the proposed rules.[9] The EPA will make a final decision on the regulations later this year.

[1] Environmental Protection Agency, Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units, 1-2, available at http://epa.gov/carbonpollutionstandards/pdfs/20120327proposal.pdf.
[2] Debra McCown, Southwest Virginia coal proponents critical of EPA's proposed new power plant regulations, TRICITIES.COM, April 2, 2012, available at http://www2.tricities.com/news/2012/apr/02/southwest-virginia-coal-proponents-critical-epas-p-ar-1810907/. 
[3] Environmental Protection Agency, Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units 2, available at http://epa.gov/carbonpollutionstandards/pdfs/20120327proposal.pdf.
[4] Id. 
[5] Id. 
[6] Andrew Restuccia and Ben Geman, EPA proposes first-ever greenhouse gas regulations for new power plants, THE HILL, March 27, 2012, available at http://thehill.com/blogs/e2-wire/e2-wire/218411-epa-unveils-long-awaited-climate-rules-for-new-power-plants.
[7] See Id. 
[8] Debra McCown, Southwest Virginia coal proponents critical of EPA's proposed new power plant regulations., TriCities.com, April 2, 2012, available at http://www2.tricities.com/news/2012/apr/02/southwest-virginia-coal-proponents-critical-epas-p-ar-1810907/.
[9] Environmental Protection Agency, Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units, 7-8, available at http://epa.gov/carbonpollutionstandard/pdfs/20120327proposal.pdf.


By: LeeAnne Edmonds Applegate, Former Staff Member. This Comment was originally published in JNREL Vol. 20 No. 1.

Abstract by: Ramsey Groves, Staff Member

Montana Wilderness Ass'n. v. Fry, 310 F. Supp. 2d 1127 (D. Mont. 2004) was decided by the United States District Court for the District of Montana. In this crucial case, the court enjoined the continued use of a natural gas pipeline based on violations of the National Environmental Policy Act of 1969 (NEPA). In issuing the injunction, the court weighed the public interest in protecting the environment against the potential economic harm to the energy company. However, the court failed to consider the economic harm to the public. Arguably, the court erred because the policies and goals of NEPA indicate the relevance of economic harm to the public. On multiple occasions, the courts of the Ninth Circuit have exhibited faulty analysis of energy issues by refusing to consider the economic harm to the public despite the requirements of the NEPA.

The NEPA states that its goals include "identify[ing] and developing methods and procedures . . . which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations." Thus, the NEPA states in no uncertain terms that economic impact should be considered. However, in Montana Wilderness Ass'n v. Fry, the Ninth Circuit recognized that the remedy for a NEPA violation is ordinarily an injunction, and the court stated that the factors to be considered include harm to the public and harm to the parties. The court further stated, "A third party's financial damages from an injunction generally do not outweigh potential harm to the environment." Based on this statement, the Ninth Circuit clearly places more weight on the environmental impact factor.

When balancing factors that include harm to the public, it is reasonable to expect a court to give appropriate consideration to economic harm to the public. This is certainly true when one considers the rising price of oil. This is of great importance because of the widespread use of petroleum products in our culture and the profound effect of these products on our national economy. Rising oil prices not only increase transportation and heating costs, but they also impact the costs of household items made from petroleum derivatives, such as diapers, deodorant, aspirin, dentures, golf balls, and compact discs.

Fortunately, not all circuits have the same view as the Ninth Circuit. The D.C. Circuit recognizes the value in reducing U.S. dependency on foreign oil. As such, the D.C. Circuit takes a more expansive approach by considering all of the factors articulated by Congress, including the economic harm to the public.

The Ninth Circuit clearly fails to comply with the NEPA policy of weighing economic harms. This circuit is the largest in the country geographically and includes within its jurisdiction the oil-producing states of California and Alaska. The Ninth Circuit's view is particularly troubling because, by failing to consider the impact of increased energy costs on the public, there is certainly a potential for great damage to the economy. Absent a Supreme Court decision mandating that the standards of NEPA are to be considered in their entirety, the Ninth Circuit is likely to maintain its problematic position.

The Battle Between Coal and Gas Rights Continues: Hazard Coal Corp. v. Kentucky West Virginia Gas Co.

This comment was written by former staff member Elizabeth Clevinger and published in JNREL Vol. 20. No. 1. Staff member Tanner James wrote the following abstract.

Coal and natural gas, despite the ongoing debates about their conservation, are undeniably important to modern society's history and future. Landowners of resource-rich property often grant rights of access to those entities that facilitate the extraction and use of these natural fuels. But, on occasion, conflict arises; and, courts must effectively determine the importance of each resource involved.

In Hazard Coal Corp. v. Kentucky West Virginia Gas Co., 311 F.3d 733 (6th Cir. 2002), a property dispute between a coal company and natural gas company resulted in a victory for natural gas—potentially signifying the end of an era of coal dominance. Hazard Coal Corporation owned the mineral property rights of the tract of land in question. Kentucky West Virginia Gas Company held limited rights to run pipelines through the property that would allow access and transportation of their natural gas. After years of conflict-free operation, the plaintiff sought to extract coal from the property in a location that required the natural gas pipelines to be destroyed or relocated at the expense of Kentucky West. When Kentucky West declined, this case came to trial.

Despite finding that the property agreement was violated by Kentucky West, the Court considered equity and policy, finding for the defendant. The equitable notion of acquiescence (e.g., the plaintiff knew or should have known that the defendant was violating the agreement, yet allowed the violation to continue without complaint) prevented the plaintiff from succeeding on claim of breach. Perhaps more importantly, however, is that the Court considered social policy in determining that Kentucky West should not face liability for decisions made by Hazard Coal.

There once was a time when coal was king, and courts used policy considerations to protect the interests of coal companies. If Hazard Coal Corp. v. Kentucky West Virginia Gas Co. is any indication, the pendulum is now swinging away from coal, in favor of other viable fuel resources.