W.Va, Ky. AGs want court to speed up EPA suit

By Kyla Asbury | Sep 3, 2014

ASHLAND, Ky. – West Virginia Attorney General Patrick Morrisey and AGs from 11 other states filed a motion Wednesday to expedite the process on a lawsuit they filed against the Environmental Protection Agency last month.

West Virginia, Kentucky, Alabama, Indiana, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Dakota, South Carolina and Wyoming believe expediting the process is necessary because they are already spending money, time and resources to try to prepare for proposed emission standard for existing coal-fired power plants.

The lawsuit, which was filed in the U.S. Court of Appeals for the District of Columbia on Aug. 1, alleges the proposed standards set forth by the Environmental Protection Agency regarding coal should be vacated.

Morrisey, Kentucky Attorney General Jack Conway, Kentucky Senate Majority Whip Brandon Smith, Kentucky House Natural Resources Chair Jim Gooch Jr., West Virginia Coal Association President Bill Raney and Kentucky Coal Association President Bill Bissett held a press conference Wednesday in Ashland to announce the filing of the motion.

The 11 states and one commonwealth are challenging the EPA's authority to issue standards of performance for existing power plants under Section 111(d) of the Clean Air Act, which were proposed on June 18.

Conway said the standards are illegal and will harm residents of Kentucky, as well as the 11 states involved.

"Coal creates low energy rates," Conway said. "The rules are ones that Kentucky cannot afford. The EPA is overreaching and this is not going to fly with my officer or with Morrisey's office."

It is widely believed that the standards as proposed would deal a crushing blow to the economies of states that produce coal as well as those states whose industries rely on electricity produced from coal and to the residents of these same states.

"We need injunctive relief now," Conway said. "We have to fight back. This is about people, not politics."

Morrisey said West Virginia and Kentucky have stood side-by-side as both have fought to ensure that the EPA's rules adhere to the law.

"This is a terrific show of unity against the EPA and its improper methods," Morrisey said. "Regardless of whether you're a Republican, a Democrat or an Independent, all of us work together to stand up against the EPA."

Morrisey said he is deeply concerned that electricity rates are going to skyrocket in West Virginia and across the country.

"Attorney General Conway and I are here today because of our profound concerns of the legality of the EPA's proposed rule," Morrisey said. "As the chief legal officers of our states, that is our area of focus."

Morrisey said the EPA claims that a one-sentence clerical drafting error from the 1990 Clean Air Act amendments – something that was not included in the U.S. code – provides the EPA with the ambiguity it needs to issue this "far reaching rule."

"That's an absurd explanation," Morrisey said. "And that's one of the reasons why we are challenging this proposed rule."

Morrisey said many attorneys general are fighting back against the EPA's proposed rule.

"We're sending a message now about the real harm this proposed rule can have on our states," Morrisey said.

Morrisey said the motion to expedite was filed because the people of West Virginia and Kentucky, as well as the other states, cannot wait two or three years to have the issue resolved.

"There is a real and present danger with this proposed rule that are going into affect and we can't allow this chilling effect to continue to harm our people and our states," Morrisey said.  "We can't allow this chilling effect to continue to cause job loss in our states."

The motion asks the court to consolidate the briefing schedule and rule on the lawsuit as quickly as possible.

"We believe a consolidated briefing schedule and expedited consideration will reduce the irreparable harm these proposed rules will have on the states," Morrisey said. "West Virginia and other coal-producing states cannot afford to have this case drag on for years. The proposed regulations already are creating uncertainty in our communities, and the longer it takes, the more of a pall it will cast over states, communities and the families who make a living from coal."

The motion states that the EPA entered into an agreement in 2011 to settle a threatened lawsuit by environmental groups and certain states. In the settlement, the EPA agreed to create guidelines for states to reduce carbon dioxide emissions from certain power plants.

However, in 2012, the EPA enacted national emission standards on the same power plants, meaning the agency can no longer require states to regulate the same power plants.

The lawsuit seeks to have that settlement agreement nullified and the proposed regulations vacated.

"The regulations EPA seeks to impose on the states are illegal and need to be dismissed as quickly as possible," Morrisey said. "In order to comply with the levels of emissions reduction required by the EPA, states will have to completely re-evaluate and possibly restructure their energy sector, implement new ways to reduce consumer demand for energy and overhaul how utilities are regulated. This is a considerable undertaking for states, and should not be done until a court can determine whether the regulations are even legal."

The motion states that the states are already expending resources to prepare plans so they can be compliant with the regulations if enacted, and the expenditures will continue to increase in the coming months, even though the rule is not finalized.

"This forced, wasteful expenditure of state resources imposes 'irreparable per se' harm because the EPA cannot be forced to reimburse the states if they are successful in challenging these regulations," Morrisey said. "That is why a quick decision on the lawsuit is so vitally important. West Virginia and other states don’t have money or time to waste on trying to meet regulations that we believe to be illegal."

The states propose that the EPA file its dispositive motions, if any, by Oct. 2, so the states can then file their opening brief and response to the EPA's dispositive motions by Oct. 15, that the EPA file its response and reply brief by Nov. 17, so the states can file their reply brief by Dec. 1.

U.S. Court of Appeals for the District of Columbia case number: 14-1146

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