States, industries launch legal assault

By Robin Bravender, Jean Chemnick | 10/23/2015 01:07 PM EDT

The legal onslaught against the Obama administration’s Clean Power Plan kicked off today as 25 states, industry and labor groups challenged the rule in court.

The legal onslaught against the Obama administration’s Clean Power Plan kicked off today as 25 states, industry and labor groups challenged the rule in court.

Today’s formal publication of the U.S. EPA rule to curb power plants’ greenhouse gas emissions triggered a 60-day deadline for challenging the rule in court. And opponents didn’t waste any time; challenges began streaming in early this morning, and EPA’s foes are asking judges to halt the power plant rules while the legal battle plays out. Today’s court filings represent the opening salvo in a court fight that’s expected to take years and may ultimately be decided by the Supreme Court.

More than two dozen states opposed to EPA’s regulations promptly filed lawsuits this morning.


A coalition led by West Virginia filed a petition challenging the rule on behalf of 24 states: Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin and Wyoming.

West Virginia Assistant Attorney General J. Zak Ritchie arrived at the U.S. Court of Appeals for the District of Columbia Circuit early this morning to be first in line to file a lawsuit. Those who file the first petition win the distinction of being named on the lawsuit, and several petitioners were lined up at court this morning to file their petitions as soon as the clerk’s office opened at 9 a.m.

"Petitioners will show that the final rule is in excess of the agency’s statutory authority, goes beyond the bounds set by the United States Constitution, and otherwise is arbitrary, capricious, an abuse of discretion and not in accordance with law," the West Virginia petition says.

West Virginia Attorney General Patrick Morrisey (R) told reporters on a conference call this morning that states will file a motion with the court later this afternoon asking judges to freeze the rule while they consider its legality. He called the EPA rule "one of the most onerous and illegal regulations coming out of Washington, D.C., that we’ve seen in a long time."

Oklahoma today filed a separate lawsuit challenging EPA’s power plant rules.

Additional petitions filed before press time came from the National Mining Association, Murray Energy Corp., the American Coalition for Clean Coal Electricity and the International Brotherhood of Boilermakers. Further challenges are expected.

The challenges to EPA’s power plant rules will likely be consolidated into one lawsuit.

Opponents of the climate regulations have already previewed their arguments to the D.C. Circuit.

Early this year, the court denied an unusual request by states, energy companies and industry groups to block EPA from finalizing its proposed greenhouse gas standards for power plants. The judges refused to rule on the legality of the standards before they were finalized (Greenwire, June 9).

And in September, the appeals court denied another early effort to block the standards. Fifteen states led by West Virginia sought an emergency stay to halt the Clean Power Plan as litigation challenging the regulations played out. But the court denied that request, too, saying challengers hadn’t met the "stringent standards" that apply to halt agency actions. The D.C. Circuit typically doesn’t entertain challenges to air rules until they are formally published in the Federal Register (Greenwire, Sept. 9).

The coalition of states challenging EPA’s final rule in court is broader than the group that waged the initial challenges. States that sued today that weren’t involved in the preliminary challenges include Arizona, Colorado, Georgia, Missouri, Montana, New Jersey, North Carolina, Texas and Utah.

"We wanted to wait until the rules were final," Texas Attorney General Ken Paxton (R) told reporters today.

Many legal experts viewed the preliminary court challenges as long shots. But now that EPA’s rule is officially ripe for court challenges, EPA’s foes say they like their chances.

"There are many compelling legal reasons why this rule should be declared invalid," Morrisey said. And Paxton said state challengers are "pretty confident that we’re going to get a stay."

Challengers are asking the court to issue a stay halting the rules "as fast as possible" to "avoid the harms to the states," Morrisey said. He said states are particularly concerned in light of a June decision by the Supreme Court that found an EPA mercury rule unlawful.

EPA said that plants had already invested in pollution controls and were "well on their way to making emissions reductions." That is "obviously unacceptable, and we’re seeking a stay to avoid a repeat of that result and put an end to this unlawful rule now," Morrisey said today.

It’s unclear when the court will decide whether to halt the rule. The judges may wait until the 60-day deadline for lawsuits and another 30-day deadline for filing court motions have passed to allow all interested parties to weigh in.

EPA, allies on defense

But EPA and its defenders say the rule is on firm legal footing, the product of exhaustive stakeholder outreach and likely to stand the test of time.

EPA Administrator Gina McCarthy in a blog post today called the rule "fair, flexible, affordable, and designed to reflect the fast-growing trend toward cleaner American energy."

She argued that — far from being a departure from past practice — the existing power plan rule is "fully consistent with the Clean Air Act" and respects the "state-federal partnership" that has been the basis for air quality rules since the law was enacted in 1970.

The rule’s opponents say it raises constitutional questions because EPA is preparing to implement a federal plan in states that opt not to put forward their own. The proposed federal implementation plan was also published in the Federal Register today and will be open for comment until January.

Rep. Ed Whitfield (R-Ky.), chairman of the House Energy and Commerce Subcommittee on Energy and Power, said at a hearing yesterday that the rule represented an "executive branch power grab at the expense of the legislative branch and the states."

But Richard Revesz of New York University School of Law said at the same hearing that the rule posed no constitutional problems "because states are not required to do anything." If they opt not to regulate, the federal government will instead. But there is no penalty to them for making that choice.

While the total number of states suing EPA has climbed, only five governors have thus far said they will not submit an implementation plan. The vast majority of the 25 states that will go to court hoping to topple the rule are also planning to comply with it.

McCarthy and EPA acting air chief Janet McCabe have claimed this as a victory. "We’re encouraged to see that many states are beginning their own planning processes because that means they’re preparing to take action," McCarthy said in today’s blog post.

McCabe, air office senior counsel Joe Goffman and others note that they continue to communicate with states as they pivot to implementing the rule, often participating in lengthy meetings and calls with state administrators.

"We are committed to helping everyone better understand the Clean Power Plan and have been impressed — but certainly not surprised — by the remarkable level of constructive engagement across the board," McCarthy said in the post. "Conversations are happening across the country."

EPA also has allies among state attorneys general, and a group of 15 states and the District of Columbia released a statement in August criticizing the states led by West Virginia for seeking to stay the rule after it was first signed.

Today, New York Attorney General Eric Schneiderman (D) said he would back EPA when it came time to defend the rule in court.

"My office is prepared to join with our partners to aggressively defend EPA’s Clean Power Plan — rules that will significantly reduce climate change pollution nationally," he said in a statement this morning. "These rules give states the flexibility to choose the best measures to cut pollution, while maintaining electrical reliability and economic growth."

Eight other states joined New York in August, pledging to stand "with EPA to defend these necessary emission standards if they are challenged in court."

And administration boosters of the rule were quick to claim some Republican support. They circulated a statement in praise of the rule from two past EPA administrators who served under Republican presidents: George H.W. Bush’s Administrator William Reilly and William Ruckelshaus, who served under Presidents Nixon and Reagan.

"Already, we understand that 24 states are lined up to ask that its implementation be stayed or suspended," said the two former administrators. "The country needs to reduce CO2 from existing power plants which generate 40 percent of America’s [carbon dioxide]. The rule is needed, and the courts we hope will recognize that it is on the right side of history."

Earlier this week, Reilly told a gathering of state environmental regulators who will be responsible for crafting state plans that they should "move ahead with planning and assume the rule will survive" (Greenwire, Oct. 21).

While EPA’s rule requires an initial submittal next year, final plans are not due until 2018 when courts are likely to have weighed in on the rule. Failure to submit a final plan at that juncture would be "a bad idea," he said, given EPA’s authority to regulate power plants directly.