24 states ask appeals court to put a hold on, and then kill, EPA’s Clean Power Plan

West Virginia Attorney General Patrick Morrisey on Oct. 23 announced that he is leading a coalition of 23 other states in a lawsuit, asking a federal court to strike down the U.S. Environmental Protection Agency’s Clean Power Plan, which he said unlawfully expands the federal government’s regulatory power over electricity production and consumption in nearly every state.

Morrisey was a leader in an earlier multi-state effort to overturn the Clean Power Plan in the proposal stage, but the federal courts ruled that the plan couldn’t be appealed until the final version was published in the Federal Register, which happened on Oct. 23. Ohio-based coal producer Murray Energy, a major producer in West Virginia, filed its own appeal of the Clean Power Plan on the same day. West Virginia is the second biggest U.S. coal producing state, trailing only Wyoming.

“The Clean Power Plan is one of the most far-reaching energy regulations in this nation’s history,” Morrisey said. “West Virginia is proud to be leading the charge against this Administration’s blatant and unprecedented attack on coal.”

The plan forces states to develop plans to dramatically reduce CO2 emissions by an average of 32% by 2030. EPA says this goal can be accomplished by reducing or eliminating coal-based energy generation, Morrisey said.

“EPA claims to have sweeping power to enact such regulations based on a rarely-used provision of the Clean Air Act but such legal authority simply does not exist,” Morrisey said.

In the petition for review filed the morning of Oct. 23, and stay motions to be filed later in the day at the U.S. Court of Appeals for the District of Columbia Circuit, the states argue the rule is illegal and will have devastating impacts upon the states and their citizens. They said the rule is in part illegal because it seeks to require states to regulate coal-fired power plants under Section 111(d) of the Clean Air Act, even though EPA already regulates those same plants under Section 112 of the Act.

The states challenging the rule in this petition include West Virginia, Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, Ohio, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, Arizona and North Carolina.

Mary Anne Hitt, Director of the Sierra Club’s Beyond Coal Campaign, said in an Oct. 23 statement about the 24-state lawsuit: “Time and again, we’ve seen Big Polluters and their allies attack the lifesaving protections that let our loved ones breathe easier and keep our clean energy economy thriving, and this challenge to the Clean Power Plan is no different. The Clean Power Plan will help us move toward a new era of clean, affordable energy that protects the health of our communities, grows our economy and signals to the rest of the world that the U.S. is serious about combating the climate crisis ahead of international negotiations in Paris later this year. It’s a huge step in taking action against climate disruption by pulling together state-level carbon pollution reduction plans and holding polluters accountable for doing their fair share.”

Hitt added: “They can throw everything and the kitchen sink at this standard, but the Clean Power Plan’s push to cut dangerous carbon pollution from power plants for the first time ever is based on a law passed by Congress and upheld by the Supreme Court, and it has the overwhelming support of the American people.”

The National Rural Electric Cooperative Association (NRECA) said Oct. 23 that it has also petitioned the D.C. Circuit Court of Appeals to review the Clean Power Plan. “This rule goes far beyond what the Clean Air Act authorizes the EPA to do and will challenge our nation’s electric system,” said Debbie Wing, NRECA director of media relations. “These complicated regulations will force cooperatives to close power plants, which are producing affordable electricity for consumers who were counting on them for decades to come. Co-op consumer-members will be saddled with higher energy bills as a result of this regulatory over-reach. Therefore, we have asked the court to intervene and recognize the lack of legal authority behind the EPA’s regulation.”

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.