WEST VIRGINIA RECORD

CHARLESTON — West Virginia Attorney General Patrick Morrisey said his office is leading a bipartisan group of nine states in an amicus brief urging the U.S. Court of Appeals for the D.C. Circuit to declare illegal the Environmental Protection Agency’s attempt to force states to impose onerous regulations on existing coal-fired power plants, requiring a 30 percent reduction in carbon dioxide emission in just 15 years.

“In its proposed rule, EPA is blatantly violating the Clean Air Act,” Morrisey said of the amicus, or friend of the court, brief. “Just (last week), U.S. Supreme Court rejected another effort by EPA to ‘bring about an enormous … expansion in EPA’s regulatory authority without clear congressional authorization.’

"The proposed rule for existing coal-fired power plants at issue in the present lawsuit is even more obviously illegal than the rule the Supreme Court struck down.  EPA’s proposed rule here is not just without ‘clear’ congressional authorization, but is directly and unambiguously prohibited by the Clean Air Act.

“While we recognize that courts typically decline to review rules that have been proposed but not yet finalized, this case is unique because EPA has proposed a rule that is so clearly illegal that even the agency itself admits that the rule violates the ‘literal’ terms of the Clean Air Act.  An agency should not be permitted to threaten to impose a rule that it knows will never survive judicial review, in order to scare regulated parties into closing their doors in anticipation of the rule being finalized.  We will use every legal tool possible to stop this flagrant overreach by EPA in order to protect the hard working families of West Virginia.”

In the brief, Morrisey explained that the Clean Air Act gives EPA a clear choice: either regulate only hazardous emissions from existing coal-fired power plants under national standards, or require states to regulate any emissions from those plants on a state-by-state basis.

Morrisey claims the Clean Air Act explicitly prohibits EPA from imposing both kinds of regulations on the same existing power plants. Since coal-fired power plants are already regulated by EPA under onerous national standards, EPA is prohibited from imposing its new proposed state-by-state regulations on those same plants.

This is so clear that even EPA admits that its proposed regulations are illegal under the “literal” terms of the law as codified.  Nevertheless, EPA claims that a one-sentence clerical “drafting error” — which was not included in the codified law — allows the agency to ignore the “literal” terms of the Clean Air Act.  But the courts have made clear that such clerical errors must be disregarded, which is why the error never made it into the law.

“EPA’s conduct here is outrageous and unprecedented: no agency has ever attempted to impose a broad regulatory program based upon what the agency itself admits was, in essence, a typo," he said. "Even if the D.C. Circuit does not agree to decide this case at this time, our brief shows to the legal community — including to the lawyers at the Department of Justice and the White House — that the proposed rule is so fundamentally flawed that it will not survive court review, whenever that review takes place.

"We will fight this illegal rule in every possible forum, and we will win, sooner or later. I urge in the strongest possible terms that the Administration end its futile endeavor by withdrawing this proposed rule immediately.”

West Virginia was joined on the brief by a bipartisan group of states including Alabama, Alaska, Kentucky, Nebraska, Ohio, Oklahoma, South Carolina and Wyoming.