West Virginia Record

Wednesday, October 23, 2019

Morrisey, other AGs seek stay of EPA Clean Power Plan deadlines

By Chris Dickerson | Aug 13, 2015

CHARLESTON – West Virginia Attorney General Patrick Morrisey, leading a coalition of 15 state Attorneys General, has filed a petition asking a court to issue an emergency stay to postpone deadlines imposed by the U.S. EPA's Clean Power Plan.

“This rule is the most far-reaching energy regulation in the nation’s history, and the EPA simply does not have the legal authority to carry it out,” Morrisey said in a statement. “With this rule, the EPA is attempting to transform itself from an environmental regulator to a central planning agency for states’ energy economies.

"The Clean Air Act was never intended to be used to create this type of regulatory regime, and it flies in the face of the powers granted to states under the U.S. Constitution.”

The petition was filed Thursday with the U.S. Court of Appeals for the D.C. Circuit by Attorneys General from the states of West Virginia, Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, Wisconsin and Wyoming. The legality of the EPA plan is being determined by the courts

Morrisey said a stay of a federal rule typically would not be sought until the lawsuit challenging it is filed, which would usually occur once the rule is published in the Federal Register. In most cases, the obligations imposed by a new rule are tied to the date of publication.

However, in this case, Morrisey says, the EPA has made the unusual choice to make the states’ obligations effective immediately. Regardless of the date of formal publication, the states already have firm deadlines to submit initial and final compliance plans under the rule.

Because it could be months before the 1,560-page rule is published, Morrisey and the other AGs say court precedent makes clear that a request for a stay at this time is needed to prevent states from having to expend significant taxpayer resources to begin complying with the rule.

“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. “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.”

Earlier this month, Morrisey and a 16-state coalition asked the EPA for an administrative stay of the Clean Power Plan while its legality was reviewed by the courts. The EPA responded saying it would take the request “under consideration,” but the agency has yet to act on that request.

To ensure the least amount of harm to states and their resources, Morrisey and the current coalition are asking for the court to rule on this emergency stay request by Sept. 8, which is about one year before states’ initial compliance plans are due.

“We sincerely hope that the Obama administration stops its gamesmanship and publishes the rule before the Sept. 8 deadline so the states can challenge the rule on the merits,” Morrisey said. “If the administration drags its feet, at the expense of the states and their citizens, the courts should grant us relief from a burdensome situation created by EPA’s highly unusual approach here.”

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