State AGs preview arguments against EPA Clean Power Plan

On the eve of oral arguments about the U.S. Environmental Protection Agency (EPA) Clean Power Plan, a couple of attorneys general and other lawyers opposing the carbon dioxide (CO2) regulation offered a brief preview of key arguments.

Texas Attorney General Ken Paxton and West Virginia Attorney General Patrick Morrisey believe they have compelling arguments to offer against the regulatory proposal when it is considered by the full U.S. Circuit Court of Appeals for the District of Columbia Circuit on Sept. 27.

The rule would have states draft implementation plans to cut power sector CO2 emissions 32% by 2030. Paxton and Morrisey are among the more than two-dozen state attorney generals that are seeking to have the EPA rule thrown out.

Paxton and Morrisey discussed the Clean Power Plan along with Mike Nasi, partner with Jackson Walker LLP; Ted Hadzi-Antich, senior attorney with the Center for American Future and Texas Public Policy Foundation; and Rob Henneke, general counsel and director with the Center for American Future and Texas Public Policy Foundation.

The legal officials appeared Sept. 26 in Washington D.C. at the Americans For Tax Reform offices. There was a webcast of the event.

The EPA first proposed the Clean Power Plan in June 2014 and West Virginia went to court to challenge the regulation almost immediately, Morrisey said. It’s a far-reaching regulatory package that would effectively allow EPA to manage energy resources across the country, Morrisey said. “This is a power grab of epic proportions,” the West Virginia attorney general said.

Morrisey said he believes there are four core arguments against the CPP. The key anti-CPP arguments include:

  • The transformative nature of the proposal is unsettling. EPA is relying on a minor provision within the Clean Air Act to become a master planner of electric energy
  • Congress never envisioned that source categories (gas/coal) would be forced to “subsidize other forms of energy”
  • Congress barred double-regulation where lawmakers have already imposed extensive regulation under another section
  • Legally, “the purview of regulating energy policy is left to the states.” This is “Obamacare on steroids,” Morrisey went on to say

“The EPA-cited illusion of state “flexibility” does not cure the legal defects hard-wired into the standard it is threatening to impose on power generators and the states,” Nasi said. 

“This is coercive federalism, not cooperative federalism.  And it does a disservice to legitimate environmental laws to suggest that the CPP is either legal or appropriate,” Nasi said.

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