Two months ago, having concluded that its authority extends only to promulgated rules and not to proposed ones, the U.S. Court of Appeals for the District of Columbia declined to conduct a review of the Environmental Protection Agency’s proposed Clean Power Plan, as requested by Patrick Morrisey and 14 other state attorneys general.
Back in June, Judge Brett Kavanaugh emphasized that “the EPA has not yet issued a final rule. It has issued only a proposed rule.”
That was then, and this is now. No longer a mere proposal, the rule is now final.
“The final rule announced Monday blatantly disregards the rule of law and will severely harm West Virginia and the U.S. economy,” Morrisey said at a meeting of the AG team. “This rule represents the most far-reaching energy regulation in this nation’s history, drawn up by radical bureaucrats and based upon an obscure, rarely used provision of the Clean Air Act. We intend to challenge it in court vigorously.”
As finalized, the rule would require states to reduce coal-based energy generation so as to cut carbon emissions by an average of 32 percent by 2030.
The merit of the argument made against the rule by Morrisey, et al. in the trial-run challenge will now get the hearing it deserves: to wit, that the rule is illegal because it goes beyond requiring power plants to install pollution technologies (as permitted by the Clean Air Act) and mandates fundamental changes in state energy policies.
“This final rule adopts a radical, unprecedented regime, transforming EPA from an environmental regulator into a central planning authority for electricity generation,” Morrisey charged. “With this final rule, the administration is doubling down on a proposal that would force states to fundamentally reorder their energy economies, which will lead to fewer jobs and higher electricity rates, and put stress on the reliability of the power grid.”
This new challenge by Morrisey and his peers is no dress rehearsal. It's the real thing.