West Virginia has joined in with a number of other states in the legal fight against the EPA’s regulation of greenhouse gas emissions.  It’s a worthwhile fight against the EPA’s overreach, but one that’s going to be difficult to win.

So far, everything has gone the EPA’s way.

In 2007 the U.S. Supreme Court, in a 5-4 decision, authorized the EPA to use the Clean Air Act to regulate greenhouse gasses.  The court followed up two years later with a finding that greenhouse gasses endanger public health.

The EPA used those decisions to set a course on climate change that includes using its considerable administrative powers to severely restrict emissions of carbon dioxide and other greenhouse gases from vehicles, factories and power plants.  The carbon limit is so low that it makes it essentially impossible to build a new coal-burning power plant unless there is a breakthrough in carbon capture technology.

Industries and a number of states are now challenging those rules.  So far, the EPA has prevailed.  The U.S. Court of Appeals for the D.C. Circuit has upheld the EPA’s regulatory direction.

And so it’s on to the U.S. Supreme Court.

The “friend of the court” brief filed by West Virginia Governor Earl Ray Tomblin and Attorney General Patrick Morrisey asks that the high court hear the appeal.

One of the legal arguments centers on the EPA’s “tailoring rule.”  That rule says the EPA will only regulate very large sources of carbon dioxide (new sources emitting 100,000 tons per year), however the Clean Air Act says any source that generates at least 100 tons a year of a pollutant must be regulated.

That would be wildly impractical, since it would mean every small business in America would be regulated, so the EPA tailored the rule to apply primarily to large industrial sources. But those industries, as well as West Virginia and the other states that have filed suit, claim the EPA has “misinterpreted the Clean Air Act and acted outside the scope of its legal and Constitutional authority.”

Then there is simply the larger issue of whether Congress, which wrote the Clean Air Act, ever envisioned it to deal with climate change.  It did not, but so far the U.S. Supreme Court has seen it otherwise, and without a substantial change in the make-up of the court, it’s hard to imagine a different outcome.

Meanwhile, the legal wrangling adds to the uncertainty of the coal industry and West Virginia’s economy.  Coal companies and electric utilities have to make decisions based on what they believe the market will be like years from now, and it’s apparent that coal is in for a long, tough slog.

Governor Tomblin says he sent President Obama a letter last month urging him to direct the EPA to “discontinue its anti-coal policies.”  There’s no need for response; the EPA has made his message loud and clear.




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  • Bob Melphis

    What is now desert in the Sahara region was vast grasslands several thousand years ago. The desert that now exists is the result of a change in the earths axis (tilt). This axis change resulted in weather patterns that reduced precipitation in the region.

  • FungoJoe

    News Flash.
    The lush green valleys and flowing rivers that were in northern Africa 2000 years ago and now how turned into a vast desert wasteland called The Sahara Desert is the result of centuries of Africans burning coal.
    The lush green valleys and flowing rivers that were once in the southwest US 2000 years ago and is now a high desert and a death valley were the result of Indians and Mexicans burning coal for centuries.
    Ooops, the weather patterns changed. Maybe that is what caused these once fertile areas to become deserts.
    Hoaxsters, the weather patterns are cyclical. They always have been, and they always will be.

    • GregG

      See Fungus, we can agree on something. Old Mother Nature controls the weather. I have never thought that your BBQ grill or my cow passing gas had any impact on climate change. Ok, now back to me being a leftist liberal progressive. Right Mongo?

      • FungoJoe

        With the name-calling you always do (Fungus, Mongo), it would be hard for the average person not to know you are a liberal progressive.

  • FungoJoe

    As we have witnessed over the last two decades, there has been a tremendous amount of solar activity with solar flares and solar storms. NASA scientists have said that the gases surrounding the sun have extended out by as much as 500,000 miles. Thus, making the earth 500,000 miles closer to the sun. Those same NASA scientists say that is quite enough to warm up the earth's atmosphere 1 or 2 degrees on the whole. But, this doesn't fit the political agenda of the lunatic leftist liberal progressives. You cannot tax the sun, but these liberal political hack progressives will try to find a way.

    • Shadow

      When we had the frost on the 25th, I wish someone would have told my tomatoes that we had Global Warming. I guess they didn't get the message.

  • leroy jethro gibbs

    epa wont budge, they know the coal companies will eventually pay and they will use the money to fund the new socialist regime

  • Bob Melphis

    Fossil fuel facts that can't be ignored: Green house gases keep heat close to the earth's surface. There is more carbon dioxide in the earths atmosphere than at any point in the last 800,000 years. The U.S. emits approx.. 6 billion tons of carbon dioxide each year (40% from power plant emissions). In the last century sea levels have risen approx. 7 inches after not having changed noticeably in the previous 2,000 years. Consequences of global warming include drought, severe hurricanes and melting of the polar ice caps. According to U.S. Global Change Research Program, the temperature in the U.S. has risen by 2 degrees in the last 50 yrs. and precipitation by 5%.

    • wirerowe

      world wide temperatures have not changed in the last 15 years. In recent years the frequency of extreme weather as represented by tornadoes has gone down. During that time period global warming entrepreneurs like Algore, Solyandra, thousands of grant seeking professors and the Sierra Club have done very well. Between 2005 and 2011 World wide CO2 emissions went up 15 %, went up 60% in China and decreased 9% in US. this understates the decline in the US because (1) EPA has sped up the closing of 10% of older coal plants (2) subsitutution of natural gas for coal in power plants and (3) improved mpg for the overall motor vehicle fleet in the US. If the US would have decreased their CO2 emissions from power plants by 50% before all of this happened it would have reduced global CO2 emissions by 3%.

    • FungoJoe

      Mr. Bob, I didn't know the CO2 levels in earth's atmosphere have been recorded and kept for 800,000 years. "There is more carbon dioxide in the earths atmosphere than at any point in the last 800,000 years." Are you just regurgitating the progressive talking points, or do you have evidence?? Just more leftist liberal progressive propoganda. The seas have risen a whole "7 inches" in 2000 years. What is the evidence?? There is none.

  • Tina B

    The need for coal is declining. Move on.

    • wirerowe

      The EIA of the US Energy Department has coal's share declining over time but absolutely coal will continue to grow over time. There is only one reason that the relative need for coal will decline at all in the future and that is low natural gas prices. Renewables such as solar and wind are insignificant now and are forecasted to be insignificant in 30 years. With natural gas at it's current price of $4.30 there is less incentive to switch from coal to gas. Move on from your pipe dreams.

      • Tina B

        It is inevitable that the world will move beyond coal. Be prepared or shrivel up -- I choose being prepared.

        • wirerowe

          tina it is highly unlikely that the world will move beyond coal. The US plays a smaller and smaller role in a world where the growth countries of the world are growing their population out of poverty and unlike the US economic growth will trump everything else. China and India combined coal consumption is 4 times that of the US and that multiple is increasing every day . There are more than 1200 coal fueled power plants proposed in 57 countries. Very few if any in the US and 3/4 of those proposed occurring in China and India. No coal is going no where but up.

  • Aaron

    On my way to the Outer Vanks this week, I passed a coal loading facility at Chesapeake, Va destined for consumption over seas. While we may not burn coal in the US, we will continue to mine it as there are countries who wish to provide energy in a cost efficient manner for their citizens.

  • GregG

    Oh joy, some more "war on COAL propaganda"! Well since we are once again on the subject of coal, let me once again ask.....If coal is the Golden Goose of this state, then why is this state always at the bottom of most all rankings? Why is our roads and bridges falling apart? Why is our schools system in bad shape? Why isn't our state government drowning in wealth? As I have stated many times in the past, I'm not a tree hugger, nor do I believe in all this climate change BS. But I'm not going to take up arms and join the coal army until I see the state and it's citizens reaping the rewards instead of all the profits going into the pockets of a few out of state coal barons. Keep selling Hoppy, but I'm not buying.

    • DonaldH

      I only had to read the first few lines to answer the question why WV is at the bottom of the pile---- Democrats in power in WV for as long as any on here can remember..... The pudding is much sweeter when the proof is it but it's still just as unhealthy... Democrats has killed all growth in this state!! ALL GROWTH,, except the bad growth...

    • Aaron

      Because the local and state politicians have sold out their constituents for most of our statehood!!!

    • Coalwiz

      Idiot politicians.

      • GregG

        So it is the politicians fault? Really? There is no way any politican would get elected in this state if he/she ran for office with even the mention of making the coal industry pay "their share" to the state. I don't care what side of the political fence they were standing on, they would not get elected because they would be viewed as "anti-coal". In my opinion there has only been one organization that has fought for this state and it miners........ and they have been forced to the verge of extinction. Good paying jobs with healthcare and retirement plans is beneficial to a sound economy and a strong tax base. So if you want to place the blame at the feet of politicans, then do tell which politicans goal has been to bust organized labor?

        • Aaron

          Is that the same organized labor that has controlled southern WV for decades?

        • bulldog95

          Didnt Joe lay down a severence tax on the coal industry and look where he is now?

  • Coalwiz

    A few points to cover.....

    Captain Q......
    No need for all the new natural gas plants you mention. If we elect another democrat to the WH in 2017 the economy will be slow enough that our existing gas power plants will be able to cover our needs. Seriously, our economy isn't growing......while the coal-powered India and China is. Hey, they might be on to something.

    Spot on. It's not an anti-coal policy the rest of the world wants.....it's an anti-US economy it wants. Enriromentalists could do the world climate much better fighting the atrocities around the world instead of here. Nobody fails to mention that in the last three decades the coal power industry has made incredible advances in reducing emissions, but these are never reported.

    When you take those 22 mpg 4wd and lift them and add the big tires their mpg goes down. And why do we do this......because we want our vehicles to represent what we want. If you want fuel mileage, buy a Prius.
    Oh, and please notice that you also failed to mention the advancements that have been made in regards to controlling emissions.

    Technically correct in regards to diminishing economically feasible reserves. But advanced mining techniques (yep, contour mining) and higher prices (which usually occurs, except for the financials caused by the current shale gas boom) will would lower this possibility. I believe that both the US and WV have a vast amount of feasibly mineable reserves that will go on for generations. I'm also certain that at today's valuations I'm amazed that China and India hasn't already aquired them. Only reason they haven't is because they realize our regulatory process is such a crazy process that they will have to own congress and the president to mine them.

    Crazy thought, isn't it?

    • Wowbagger

      "I believe that both the US and WV have a vast amount of feasibly mineable reserves that will go on for generations."

      Where in WV??? The US has lots of mineable coal in western basins and, of course the north slope of Alaska (pretty cold work and not a lot of infrastructure), but that much here in WV.

      ... Belief is not knowledge.

      "But advanced mining techniques (yep, contour mining)" Contour mining began in West Virginia with surplus equipment from the Panama Canal. Contour mineable reserves have largely been depleted in WV by now. Contour mining is frequently the LAST phase of the mining cycle stripping remaining barrier pillars.

      ... Do you have any promising new technologies?

  • Dave

    Whine whine whine. It sure is tough to do the right thing in this country. Every time somebody tries to do the right thing, there is some paid loudmouth trying to inflict political damage upon them.

  • Wowbagger

    West Virginia coal production is in inexorable decline, but not because of the EPA. West Virginia is running out of commercially mineable coal. It is physically impossible to achieve past levels of production. West Virginia is well over the peak of the Hubbert curve. Our best market is to export the remaining reserves. Forget the EPA, what we need is not this political Kabuki. We need to lobby for better port facilities and find a way to leverage gas and liquids from the Marcellus and Utica Shales into replacements for coal jobs.

  • David

    The EPA would really be mad over that dump I just took. It was 100,000 tons. Chinese food bad grrrrr.

  • TD

    Villifying the EPA on a Monday morning, what better way to begin the week? Yes the EPA has forced lots of changes on the country and by and large we should be thankful. In my business we used harsh chemicals for years, every time I or my employees would have headaches, etc... Now, thanks to endless pushing by the EPA we use a soy based solution that works just as well and is not harful to anyone.

    Full size 4 wheel drive pickups now getting 22 mpg, why? Because the EPS pushed the auto industry to get it done.

    So what does this mean for coal? It means they will find a scientific solution to be able to use coal and we'll all be better off for it.

    • FungoJoe

      Its a Tuesday morning in the real world. You are a day late and a dollar short out there on the lunatic left fringe.

    • bulldog95

      "In my business" sounds like it was yours, and your call and what to do. If it was a place you worked then I most people would refer to it as "where I worked."

      Now that that is out of the way, why did it take the EPA to make you use soy instead of the harsh chemicals? The soy cost a little more and you only did it when you were required?

    • Hop'sHip

      What is the matter with you, TD? Acting responsibly to protect your workers and the environment instead of whining on about losing your freedom? Do you expect the Coal Industry to do the same? Why, when they have friends like Hoppy and the entire WV political delegation telling them they shouldn't have to.

  • a thought

    Part of the big push and money behind this comes from activists such as the sierra club. I for one am sick and tired of tree huggers thinking we all should live the way they believe is right.

    • DonaldH

      They are not “tree-huggers” but instead they are, at least the leadership, are socialist and ant-capitalist… The rank-file, the idiots that climb trees and camp out in them and so on are “tree-huggers” but a more accurate description of them would be “USEFUL IDIOTS”

      • FungoJoe

        Or Low-information voters. Very low.

  • CaptainQ

    Hoppy, it looks like the 'War on Coal' will be a long one, and it will eventually be won by the Democrats. Obama has three more years in the White House and there's little doubt that a Democrat will succeed him in 2017. As we have seen, it doesn't matter who controls the House or Senate, the President is in complete control of the agenda for all Federal agencies such as the EPA. THIS President seems to be dead set on destroying the coal industry once and for all, and to what end?

    All this talk about how natural gas will replace coal in electrical plants is truly laughable. First of all, it will take BIG MONEY to convert all coal fired power plants to natural gas. Where will all that cash come from? The utility companies certainly don't have it and neither does the Federal Government so good luck with that. Secondly, natural gas MIGHT be cheaper NOW, but don't you think when more electrical power is generated by natural gas, that the higher demand will drive the price up? This will, over the course of time, make coal a much less expensive option, of course by then it'll be too late.

    How will America satisfy it's growing appetite for electrical energy without coal? Nuclear power? Yeah right! No one wants to live near a nuclear plant. Wind power? Can't use that either because all of the environmentalists are screams about all the birds and bats the spinning blades will kill. Solar power? Not a profitable option, even in 2013. Can America truly afford to pull the rug out from under the coal industry without having a 100% ready alternative means of power generation to take it's place?

    Looks like those of us who will live through the next two decades will find out... the HARD way!

    • DonaldH

      Sad thing is so many of the sheeple,-- the rank and file useful idiots, and we all no who these people are and how they vote,--- truly believe the BS that the quest for a “clean environment” is what drives this anti-coal agenda…

      When the rest of the world finally catches up with the U.S. economically and we have “shared our wealth with the world” then I promise you you’ll stop hearing about “green-house emissions”

      • DonaldH