States ask U.S. Supreme Court for stay of CO2-reducing Clean Power Plan

West Virginia Attorney General Patrick Morrisey and officials from 29 states and state agencies on Jan. 26 urged the U.S. Supreme Court to immediately halt the “ongoing damage” caused by the U.S. Environmental Protection Agency’s Clean Power Plan, which was published last October and mandates 32% greenhouse gas cuts by 2030 from existing power plants.

The rule illegally forces states to overhaul their energy portfolio and does so without congressional authority, costing countless jobs, increasing electricity prices and jeopardizing energy reliability, said Morrisey in a Jan. 26 statement. he estimates a final ruling from the U.S. Court of Appeals for the D.C. Circuit on multiple appeals of the Clean Power Plan could take at least six months and perhaps stretch into 2017. Meanwhile, a stay by the Supreme Court could freeze the plan and protect workers as arguments on the merits of the case move forward.

“Without Supreme Court intervention, West Virginia and other states will suffer irreparable harm as job creators and state agencies spend untold resources to comply with a rule that is likely to be struck down as illegal,” Morrisey said.

The D.C. Circuit Court, which declined to put halt to the plan earlier this month, will hear oral arguments June 2 on the merits of the states’ case. The states’ application for Jan. 26 stay argues that a majority of the Supreme Court would likely side with the states in finding the plan illegal.

“While we know a stay request to the Supreme Court isn’t typical at this stage of the proceedings, we must pursue this option to mitigate further damage from this rule,” Morrisey said. “Real people are hurting in West Virginia and it’s my job to fight for them.”

West Virginia and Texas helped lead 23 other states to on Oct. 23, 2015, the day the Clean Power Plan was published in final form, file suit against the plan. They argue the rule exceeds EPA’s authority by double regulating coal-fired power plants and forcing states to fundamentally shift their energy portfolios away from coal-fired generation among other reasons.

Those joining West Virginia and Texas seeking a stay from the Supreme Court are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin and Wyoming, along with the Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality and Oklahoma Department of Environmental Quality.

The stay request filed at the high court referred to a decision last year from the court saying EPA didn’t do enough to quantify the costs of its Mercury and Air Toxics Standards, which also apply to power plants.

“This Court’s decision last Term in Michigan v. EPA, 135 S. Ct. 2699 (2015), starkly illustrates the need for a stay in this case,” said the request. “The day after this Court ruled in Michigan that EPA had violated the Clean Air Act (‘CAA’) in enacting its rule regulating fossil fuel-fired power plants under Section 112 of the CAA, 42 U.S.C. § 7412, EPA boasted in an official blog post that the Court’s decision was effectively a nullity. Because the rule had not been stayed during the years of litigation, EPA assured its supporters that ‘the majority of power plants are already in compliance or well on their way to compliance.’ Then, in reliance on EPA’s representation that most power plants had already fully complied, the D.C. Circuit responded to this Court’s remand by declining to vacate the rule that this Court had declared unlawful. In short, EPA extracted ‘nearly $10 billion a year’ in compliance from power plants before this Court could even review the rule … and then successfully used that unlawfully-mandated compliance to keep the rule in place even after this Court declared that the agency had violated the law.

“In the present case, EPA is seeking to similarly circumvent judicial review, but on an even larger scale and this time directly targeting the States. In sworn declarations submitted to the D.C. Circuit below, numerous state regulators describe the Plan as the most far reaching and burdensome rule EPA has ever forced onto the States. Relying on five words in a rarely-used provision of the CAA—“best system of emission reduction”—EPA claims the authority to require States to achieve massive carbon dioxide emission reductions that EPA has calculated based on “shifting” electric generation away from fossil fuel-fired power plants to other sources of energy—such as wind and solar—that EPA prefers. And because there is no way to meet the Plan’s targets solely by making performance improvements at fossil fuel-fired power plants, it is undisputed that the Plan will force a massive reordering of the States’ mix of generation facilities.”

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.