Group of 15 states ask D.C. Circuit to block EPA Clean Power Plan

A coalition of 15 state attorneys general have filed a petition asking a federal appeals court to issue an emergency stay to postpone deadlines imposed by the U.S. Environmental Protection Agency’s Clean Power Plan while its legality is determined by the courts.

The petition was filed Aug. 13 with the U.S. Court of Appeals for the District of Columbia Circuit. The petition was filed with the D.C. Circuit by attorneys general from the states of West Virginia, Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, Wisconsin and Wyoming.

The final version of the rule was announced by EPA on Aug. 3 and has yet to actually be published in the Federal Register.

States had already asked EPA itself to stay the rule that would have states cut power sector carbon dioxide (CO2) 32% by 2030. EPA has not.

Typically, a stay of a federal rule would not be sought until the lawsuit challenging it is filed, which would usually occur once the rule is published in the Federal Register. In most cases, the obligations imposed by a new rule are tied to the date of publication.

However, in this case, the attorneys general argue, the EPA has made the unusual choice to make the states’ obligations effective immediately.

Regardless of the date of formal publication, the states already have firm deadlines to submit initial and final compliance plans under the rule. Because it could be months before the 1,560-page rule is published, the states believe court precedent makes clear that a request for a stay at this time is appropriate in order to prevent states from having to expend significant taxpayer resources to begin complying with the rule.

To ensure the least amount of harm to states and their resources, the current coalition are asking for the court to rule on this emergency stay request by Sept. 8 – approximately one year before states’ initial compliance plans are due.

“This rule is the most far-reaching energy regulation in the nation’s history, and the EPA simply does not have the legal authority to carry it out,” said West Virginia Attorney General Patrick Morrisey. “With this rule, the EPA is attempting to transform itself from an environmental regulator to a central planning agency for states’ energy economies. The Clean Air Act was never intended to be used to create this type of regulatory regime, and it flies in the face of the powers granted to states under the U.S. Constitution.”

He added: “If we were to wait on the EPA to get this rule published, it could be well into 2016 before the States complete arguments and receive a ruling on a request to stay this rule. By that time, many states will already be in the middle of drafting their compliance plans ahead of the September 2016 deadline. We want to ensure that no more taxpayer money or resources are wastefully spent in an attempt to comply with this unlawful rule that we believe will ultimately be thrown out in court.”

Sierra Club scoffs at petition as ‘premature’ and ‘frivolous’

Sierra Club Chief Climate Counsel Joanne Spalding said Aug. 13 about this court petition: “This frivolous lawsuit makes it clear just how desperate these polluter-backed politicians are to do the bidding of the fossil fuel industry rather than serve the families in their states. Multiple federal courts have already rejected premature attacks on the Clean Power Plan and EPA’s carbon standards for new power plants. These Attorneys General are wasting taxpayer dollars on a junk lawsuit just to attack life-saving clean air safeguards.”

Sample quotes from the Aug. 13 petition are:

  • “The Section 111(d) Rule manifests EPA’s policy judgment—never authorized by Congress—that coal-fired generation should be systematically disfavored. Beginning on August 3, States were given only thirteen months to design, draft, and submit at least initial State Plans, which must demonstrate how the State will replace coal-fired generation with entirely different sources such as natural gas, wind power, and solar power.”
  • “EPA’s claim that Section 111(d) permits the agency to reorganize the nation’s energy economy on a state-by-state basis must also be rejected because it violates the Tenth Amendment. States’ authority over the intrastate generation and consumption of electricity is ‘one of the most important functions traditionally associated with the police powers of the States.'”
  • “This Court’s recent decision in In re Murray Energy… is not to the contrary. In that case, the parties sought a writ prohibiting EPA from finalizing the Section 111(d) Rule. This Court denied that petition, explaining that the Section 111(d) Rule was then ‘just a proposal.’ The Rule is now not just a proposal; it has been signed by the Administrator as ‘final’ and imposes date-certain obligations upon the States.”

Murray Energy is an Ohio-based coal producer that was one of several parties that tried, with a complete lack of success, to get federal courts to review the Clean Power Plan before it was issued in final form on Aug. 3.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.