Morrisey leads lawsuit to seek end of EPA Clean Power Plan

By Chris Dickerson | Oct 23, 2015

CHARLESTON – West Virginia Attorney General Patrick Morrisey is leading a coalition of 23 others states in a lawsuit seeking to strike down the U.S. Environmental Protection Agency's Clean Power Plan.

Morrisey's office announced the lawsuit Oct. 23, saying it believes the EPA rule unlawfully expands the federal government’s regulatory power over electricity production and consumption in nearly every state.


Morrisey said the Petition for Review already has been filed, and the Stay Motions was to be filed later Friday in the U.S. Court of Appeals for the District of Columbia Circuit.

“The Clean Power Plan is one of the most far-reaching energy regulations in this nation’s history,” Morrisey said in a statement. “West Virginia is proud to be leading the charge against this administration’s blatant and unprecedented attack on coal.”

The final Clean Power Plan rule was published Friday in the Federal Register, starting a 90-day comment period for comments. The publication of the rule gives states and energy companies the opportunity to file lawsuits to challenge the legality of the rule.

"This allows us to go to the court and finally have our review on the merits," Morrisey told The West Virginia Record on Friday, speaking about the publication of the rule. "We’ve been working to get it to this point. The rule is manifesting itself in West Virginia, and it's critical to set this rule aside.

This is an important day for the citizens of West Virginia. Our state is fighting back, not only with this litigation but also by sending the message that coal has a future. If successful, this could lead to more investment in the state, more jobs and better opportunities."

The Clean Power Plan forces states to develop plans to reduce carbon dioxide emissions by an average of 32 percent by 2030. The agency says this goal can be accomplished by reducing or eliminating coal-based energy generation.

“EPA claims to have sweeping power to enact such regulations based on a rarely-used provision of the Clean Air Act but such legal authority simply does not exist,” Morrisey said.

The AG's office says forcing such changes in electricity production, coal-fired plants will be subjected to costly compliance measures or closure, leading to skyrocketing electricity rates and loss of reliable electricity for West Virginian families.

“As Attorney General, I have a responsibility to protect the lives of millions of working families, the elderly and the poor, from such illegal and unconscionable federal government actions,” Morrisey said. “It’s the people who can afford it least who are going to be affected the most.”

In the Petition for Review and Stay Motions, which will be filed in the U.S. Court of Appeals for the District of Columbia Circuit, the states argue the rule is illegal and will have devastating impacts on the states and their citizens.

The states claim that Section 111(d) rule exceeds EPA’s authority by unlawfully forcing states to fundamentally alter state resource-planning and energy policy by shifting from coal-fired generation to other sources of power generation, with a significant emphasis on renewable sources. The states also say the rule is illegal because it seeks to require states to regulate coal-fired power plants under Section 111(d) of the Clean Air Act, even though EPA already regulates those same plants under Section 112 of the act.

The states challenging the rule are West Virginia, Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, Ohio, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, the Arizona Corporations Commission, and the North Carolina Department of Environmental Quality.

Morrisey said Friday he hopes the court takes action quickly.

"It's tough to predict the timeframe," he said. "We do hope the court will move expeditiously."

He also said he hopes other states join the lawsuit.

"There will be some states opposed to our motion, but we’re encouraged we can continue to grow," Morrisey said. "Listen, our office works hard. We do everything we can to help the citizens of West Virginia, and fighting EPA overreach is one of the central aspects of our mission.

"Lots of states have done great work on this front. We have a great team. And it is a team effort. It’s bipartisan. Hopefully, it’s going to be very effective.

"You win against the EPA by building a team. We have a good team, and we’re honored to be one of the states."

This lawsuit isn't the first time Morrisey has led a push against the EPA and the Clean Power Plan. In fact, Morrisey has fought against what he calls the EPA's overreach since he took office in 2013.

Last month, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit shot down a petition filed by a coalition of 15 state AGs asking it to issue an emergency stay to postpone deadlines imposed by the federal Clean Power Plan.

And in August, some state AGs asked the EPA for an administrative stay of the plan while its legality was reviewed by the courts. The EPA said it would take the request “under consideration.”

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