Manatt's Craig Moyer, chair of the firm's Land, Environment and Natural Resources division, was interviewed by the FERC Power Report for an article about the nine states that are joining a petition for extraordinary writ originally filed by Murray Energy Corp.
As reported by the FERC Power Report, West Virginia is leading a bipartisan group of nine states in filing a friend of the court brief urging the U.S. Court of Appeals for the D.C. Circuit to declare the EPA's Clean Power Plan illegal. Originally filed by Murray Energy, the petition seeks an exception to the court's tradition of declining to take on proposed rules until they are finalized. Murray claims the scenario calls for earlier intervention due to high potential of wasted resources.
Moyer told the publication that initially he thought the lawsuit was a "big loser," but after looking into it, the early challenge has become more interesting. He said he is not sure if the argument will prevail, but the notion that the Clean Air Act prevents "double regulation" of source categories is "facially appealing."
"The more challenging part of the case is whether a court will take it on at the proposed rule stage," Moyer said. "Judges may not issue advisory opinions so must find a real case and controversy involving real damages to petitioners."