States fire opening shot with request for emergency stay

By Ellen M. Gilmer | 08/14/2015 07:28 AM EDT

Foes of the Obama administration’s plan for cutting greenhouse gas emissions from the power sector have lodged their first formal challenge to the newly finalized Clean Power Plan, asking federal judges to postpone the rule’s deadlines.

Foes of the Obama administration’s plan for cutting greenhouse gas emissions from the power sector have lodged their first formal challenge to the newly finalized Clean Power Plan, asking federal judges to postpone the rule’s deadlines.

Fifteen states, led by West Virginia Attorney General Patrick Morrisey (R), filed their complaint yesterday in the U.S. Court of Appeals for the District of Columbia Circuit, arguing that U.S. EPA overstepped its authority in crafting the climate plan, which sets state emissions targets based on increased coal plant efficiency and more reliance on renewables and natural gas.

The emergency petition argues that the 1990 amendments to the Clean Air Act bar the agency from using Section 111(d) of the law to regulate a source that is already regulated by Section 112. Existing power plants — the key target of the Clean Power Plan — would fall into that category.


EPA has countered that the amendments — which have different language in the House and Senate versions — were instead intended to avoid duplication of regulation for a pollutant, not a source, and that the agency is entitled to deference on the interpretation.

The states’ complaint also argues that EPA must focus its regulation on traditional areas like pollution-control technology, instead of straying beyond the power plant "fence line" to state energy portfolios.

"Rather than requiring ‘improved design and operational advances,’ the Rule mandates far-reaching measures aimed at reducing usage of coal-fired energy by increasing reliance upon competing sources of energy: natural gas and, especially, renewable energy such as solar power and wind," the attorneys general wrote in the filing. "These are economy-wide energy policy mandates, which simply disfavor coal-fired power plants and favor other source categories."

EPA spokeswoman Liz Purchia countered that the rule is based on extensive input from states, industry, regulators and environmentalists and provides "national consistency, accountability and a level playing field while reflecting each state’s energy mix."

"To ensure that the Clean Power Plan’s significant health benefits and progress against climate change are delivered to all Americans, EPA and the Department of Justice will vigorously defend it in court," she said in an email.

The states’ arguments in yesterday’s petition track closely with points raised in previous legal efforts against the plan, including a lawsuit from many of the same states that asked the D.C. Circuit to stop EPA from even finishing the rule. The court threw out that suit as premature, a ruling the states challenged.

Two states involved in the early litigation, Alaska and South Carolina, have not joined in the new lawsuit. The Clean Power Plan does not yet set emissions requirements for Alaska, and South Carolina got a boost from the final plan, which allows nuclear power plants currently under construction to count toward compliance.

States new to the litigation are Michigan and Florida. Michigan’s targets for emissions reductions stayed nearly the same from the draft to final rule, while Florida’s targets were significantly softened.

No time for Federal Register?

Environmentalists yesterday railed at the plaintiff states for filing their legal challenge before Federal Register publication of the rule, despite a Clean Air Act provision that sets a 60-day window for lawsuits after publication.

The attorneys general urged the court to recognize the urgent nature of their request, noting that EPA could delay publication of the 1,560-page rule for months, while states must begin crafting their compliance plans immediately.

"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," Morrisey said in a statement. "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.

"While this request is not typical, the EPA is playing games by putting the risk of a delay in publication entirely on the states. We hope the court will spare our states any more unnecessary harm, and that the EPA will not needlessly delay the publication date," he said.

Sierra Club attorney Joanne Spalding argued that federal judges are unlikely to be receptive to the states’ request.

"Multiple federal courts have already rejected premature attacks on the Clean Power Plan and EPA’s carbon standards for new power plants," she said in a statement yesterday. "These Attorneys General are wasting taxpayer dollars on a junk lawsuit just to attack life-saving clean air safeguards."

A coalition of environmental groups is expected to intervene in the lawsuit on EPA’s side.

States supportive of the Clean Power Plan also fired back, issuing a joint statement criticizing West Virginia and the other plaintiffs for challenging the rule so early.

"West Virginia and other states have filed a request to stay the Clean Power Plan, a new federal rule that will protect Americans from the harmful impacts of climate change on our economies, environment, and public health," the attorneys general of 15 states plus New York City and Washington, D.C., said in a statement.

"Like West Virginia’s challenge to the proposed rule, which was dismissed by the courts, this filing is premature," they said. "If and when requests to stay the final rule are timely filed, after the rule has been published in the Federal Register, our coalition will formally oppose them."