Montana, Tribe Fight EPA’s Proposed Carbon-Dioxide Rules

Published February 19, 2015

The State of Montana and the Crow Nation have filed joint comments with the Environmental Protection Agency disputing EPA’s authority to impose new regulations on carbon dioxide emissions. Montana supplies coal to other states across the country.

The EPA is proposing new regulations under Section 111(d) of the Clean Air Act to force states to reduce carbon dioxide emissions from existing fossil fuel-fired power plants. Montana Attorney General Tim Fox and Crow Nation Chairman Darrin Old Coyote argue the regulations would cost Montana jobs and place economic hardship on Crow Nation.

Old Coyote said the regulations would cripple the largest source of jobs on the reservation, which already suffers a staggering 47 percent unemployment rate.

“Coal mining on our reservation provides family-wage jobs and benefits for our members,” said Chairman Old Coyote in a statement. “The Crow Nation can, and should, be self-sufficient, and developing our resources is a significant step in that direction. Since the proposed regulations will penalize our customers in the Midwest and shrink our market, they could have severe impacts on our livelihood.”

Comments sent to EPA Administrator Gina McCarthy on December 1 explain the reservation contains two million acres in subsurface mineral rights, including an estimated nine billion tons of coal. The Crow Nation has developed only a limited amount of its resource by leasing a portion of its coal reserves for 40 continuous years.

Claimed Overreach

Also joining the state of Montana are attorneys general from 16 other states who filed separate comments arguing the EPA’s proposal is illegal and exceeds federal authority granted in the Clean Air Act.

“The EPA is attempting to use the Clean Air Act to bypass Congress and impose a federal energy policy on the states,” Attorney General Fox said in a statement. “Moreover, the U.S. Supreme Court has ruled and an EPA legal memo concedes that the agency doesn’t have the authority to regulate existing power plant emissions under rule 111(d).”

Furthermore, as the Crow Nation’s comments note, the Obama administration failed to abide by its own executive order requiring consultation with tribes before any agency proposes rules possibly impacting tribes. Crow Nation was not consulted before the EPA proposed the new regulations.

“In short, EPA did not consult with the Crow Nation, did not consider the economic impacts on the Crow Nation, and did not provide a less intrusive alternative to the severe effect on the Crow Nation of this Proposed Rule,” the tribe’s comments state.

The tribe also noted in its comment, “The Crow citizens are also citizens of the state of Montana, which shares the Crow administration’s goals and desires for the Crow people.”

‘Unacceptable Economic Harm’

“Our objective is to persuade governors across the country this carbon reduction plan will impose unacceptable economic harm on their citizens and to reject the plan in its entirety,” said Luke Popovich, a spokesperson for the National Mining Association.

Along those lines, National Mining Association President and CEO Hal Quinn spoke at the United States Energy Association’s energy outlook conference on January 21. He addressed the future of coal in the face of the new regulations for both new and existing power plants the EPA is expected to finalize later this summer.

“But EPA’s plan for existing plants could be short-circuited by a pending case in the DC Circuit,” Quinn told Environment and Climate News. “Murray Energy and 11 states claim EPA cannot regulate power plants using Clean Air Act § 111(d) new source performance standards because they are already regulated under the §112 for hazardous air pollutants.

“Many legal observers believed the case was premature and the question presented would need to await litigation over the final CO2 rule. To their surprise, or disappointment, the court has asked the parties to brief this important question. It is entirely possible the court may decide to dismiss the case as premature. But there are compelling reasons for the court to decide sooner than later the threshold question of EPA’s authority to regulate power plant CO2 emissions in the first instance,” Quinn added.