Attorneys General from two states tell the Senate the Clean Power Plan is flat out illegal

Attorneys General from Oklahoma and West Virginia on May 5 told a U.S. Senate subcommittee that the U..S. Environmental Protection Agency’s proposed Clean Power Plan, designed to reduce greenhouse gas emissions from existing power plants by 30% by 2030, is in many ways illegal and will be fought out in court. 

On May 5, U.S. Senator Shelley Moore Capito, R-W.Va., a staunch defender of her home-state coal industry, chaired a Senate Committee on Environment and Public Works Clean Air and Nuclear Safety Subcommittee in Washington. The hearing was called “Legal Implications of the Clean Power Plan.”

Patrick Morrisey, the Attorney General of West Virginia, said in prepared testimony: “I appreciate the opportunity to testify about the Administration’s widely publicized effort to severely limit the use of coal in the United States. When President Obama was running for President in 2008, he told The San Francisco Chronicle that his vision of environmental and energy policy included ‘bankrupt[ing]’ coal-fired power plants. In the last two years, the President’s EPA has made it a top priority to carry out this threat, by proposing several interlocking regulations that are specifically designed to put many existing coal-fired power plants out of business, and to make building new coal-fired power plants virtually impossible.

“I am here today to talk about the central component in the Obama Administration’s so-called Clean Power Plan, commonly known as the Section 111(d) Rule. This Rule seeks to require States to reduce emissions from existing coal-fired power plants by—on average—a staggering 30% in just 15 years. The method the Rule uses to achieve this reduction has been widely described as radical and plainly illegal. Rather than merely setting a structure for States to reduce emissions from these plants, EPA has taken the view that it can force States to reduce the use of—including demand for—coal-based energy. EPA has made very clear that it intends to finalize the Section 111(d) Rule this summer.

“The impacts of the Rule will be devastating in West Virginia and throughout the United States. Because coal-fired power currently constitutes approximately 40% of the total energy generated in the United States, the Rule will likely result in reductions in the use of coal and will necessitate the building of many new non-coal-fired power plants—an expense that will be borne by ratepayers in the form of higher electricity prices. It will also further undermine the coal market, which provides numerous well-paying jobs to working men and women in some our most economically depressed communities. Make no mistake about it—finalizing this proposal would have a devastating impact on my State, other coal-producing States, and citizens from across the country, who will feel the negative economic impact of high electricity prices and reduced reliability of the power grid.

“West Virginia is one of the poorest States in the country and yet is the second largest producer of coal. This proposal will result in even greater economic displacement for Appalachia—at a time when we can least afford it.

“It is my duty as the chief legal officer for the State of West Virginia to fight against this unlawful power grab, which is harming our citizens. West Virginia has already led a bipartisan coalition of 15 States in a lawsuit before the U.S. Court of Appeals for the D.C. Circuit, which targets EPA’s authority to issue any rule regulating existing power plants under Section 111(d) when EPA has already regulated the same source category under Section 112 of the Act. The D.C. Circuit held oral argument in our case on April 16, 2015, and a decision is expected sometime this summer. In that litigation, the Department of Justice has claimed that EPA still might not issue the Rule, but outside the courthouse walls, EPA has promised everyone from Main Street to the United Nations that it will finalize the Section 111(d) Rule this summer.

“If the D.C. Circuit has not already stopped the Rule by then, the finalized Section 111(d) Rule will raise a host of additional legal issues that we plan to bring to the D.C. Circuit as well. West Virginia would challenge a final Rule in court, and we expect that the coalition of 15 States we have gathered for our first D.C. Circuit lawsuit will only grow. Given the entirely unprecedented and unlawful nature of the Section 111(d) Rule, the States and other interested parties will have no shortage of legal defects to bring to the D.C. Circuit.”

Oklahoma Attorney General also says the plan has no legal leg to stand on

E. Scott Pruitt, the Attorney General State of Oklahoma, said in written remarks: “This is an issue of major importance to states like Oklahoma. Quite simply, Madam Chairwoman, the EPA does not possess the authority under the Clean Air Act to do what it is seeking to accomplish in the so-called Clean Power Plan. The EPA, under this administration, treats states like a vessel of federal will. The EPA believes the states exist to implement the policies the Administration sees fit, regardless of whether laws like the Clean Air Act permit such action.

“In their wisdom, Congress gave states a primary role in emissions regulation, noting in the statement of policy of the Clean Air Act that ‘air pollution control at its source is the primary responsibility of states and local governments.’ That statement respects the constitutional limits on federal regulation of air quality, and the reality that states are best suited to develop and implement such policies. States are able to engage in a cost-benefit analysis to strike the necessary balance between protecting and preserving the environment, while still creating a regulatory framework that does not stifle job growth and economic activity.

“The states are partners with the federal government in regulating such matters. Therefore, the Clean Air Act hinges on ‘cooperative federalism’ by giving states the primary responsibility and role for regulation while providing a federal backstop if the states should fail to act. When the EPA respects the role of the states, the cooperative relationship works well. When the EPA exceeds the constraints placed upon the agency by Congress, the relationship is thrown out of balance and the rule of law and state sovereignty both suffer. The Clean Power Plan proposal throws the cooperative relationship between the states and the Federal government off balance. The EPA claims the proposal gives states flexibility to develop their own plans to meet the national goals of reducing carbon dioxide emissions. In reality, the Clean Power Plan is nothing more than an attempt by the EPA to expand federal bureaucrats’ authority over states’ energy power generation mixes. The plan requires each state to submit a plan to cut carbon-dioxide emissions by a nationwide average of 30 percent by 2030.

“In Oklahoma, 40.5 percent of energy generation comes from coal-fired power plants while 38.1 percent comes from natural gas. Oklahoma ranks fourth in the nation with 15 percent of power generation coming from wind. This begs the question, how does the EPA expect states like Oklahoma to meet the goals of the Clean Power Plan? There are only so many ways Oklahoma can achieve the 30 percent reduction demanded by the EPA. The plan, therefore, must be viewed as an attempt by the EPA to force states into shuttering coal-fired power plants and eventually other sources of fossil-fuel-generated electricity.”

Capito promises new bill addressed at the Clean Power Plan

Said Capito in her May 5 opening statement for this hearing: “Back in February, in a full committee hearing in this room, I asked EPA Acting Assistant Administrator Janet McCabe to explain why the EPA did not hold a public hearing on its proposed Clean Power Plan in West Virginia, despite the large role coal has in our economy and our electricity generation, and despite the multiple invitations by federal and state legislators. She told me public hearings were held where people were ‘comfortable’ going. That response is unacceptable to me and to the people of my state. As Attorney General Morrisey will also point out in his testimony, this rule will have devastating impact on our state, other coal producing states, electricity rate payers across the country and the reliability of our grid.

“We know from nearly five decades of experience that the Clean Air Act works best when implemented in the spirit of cooperative federalism. When the federal government works with the states as partners, we can, and have, improved air quality and protected our economy and our electricity grid at the same time. However, the Clean Power does none of this. Instead, we have EPA dictating to states and effectively micromanaging intrastate electricity policy decisions to a degree even the agency admits is unprecedented. This raises a broad array of legal issues and is, quite simply, bad policy.

“As a result, many states – including West Virginia and Oklahoma, whose Attorneys General we will be hearing from today – have raised grave concerns about the legality of the rule and the implications for their citizens and ratepayers. In addition to significant Constitutional and other legal questions, states have expressed concerns about the feasibility of EPA’s proposed requirements and the likely impacts on electricity costs and reliability.

“Next week I will be introducing greenhouse gas legislation with my colleagues that will preserve the proper balance of state and federal authority, help ensure reliable and affordable electricity, and protect jobs and our economy. I look forward to working with my colleagues on the committee to advance this bill and prevent the devastating impacts of continued EPA overreach.”

Witnesses at the hearing were: West Virginia Attorney General Patrick Morrisey; Oklahoma Attorney General Scott Pruitt; Roger Martella Jr., Partner, Sidley Austin LLP; Kelly Speakes-Backman, Commissioner of the Maryland Public Service Commission and Chair of the Regional Greenhouse Gas Initiative Inc. Board of Directors; and Lisa Heinzerling, Justice William J. Brennan Jr. Professor of Law at Georgetown University Law Center. 

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.