West Virginia Record

Wednesday, November 13, 2019

AGs want U.S. SC to stay EPA’s Clean Power Plan

By Jessica Karmasek | Jan 28, 2016


CHARLESTON – West Virginia Attorney General Patrick Morrisey, along with officials from 30 other states and state agencies, are now asking the U.S. Supreme Court to put the Environmental Protection Agency’s Clean Power Plan on hold.

On Jan. 26, Morrisey and Texas Attorney General Ken Paxton lead the coalition in filing a stay application with the nation’s high court.

The rule, the attorneys general contend, illegally forces states to overhaul their energy portfolio and does so without congressional authority, costing countless jobs, increasing electricity prices and jeopardizing energy reliability.

“Without Supreme Court intervention, West Virginia and other states will suffer irreparable harm as job creators and state agencies spend untold resources to comply with a rule that is likely to be struck down as illegal,” Morrisey said.

Paxton agreed.

“The Obama administration has exceeded its authority in imposing a plan that will kill jobs and significantly raise electric bills for all Americans,” he said. “This power grab will force a massive reordering of nearly every state’s electric grid and result in less-reliable service for all customers.

“Such far-reaching actions raise serious concerns about the power of the federal government.”

Last week, the U.S. Court of Appeals for the District of Columbia Circuit denied a similar request by the states, saying the petitioners “have not satisfied the stringent requirements for a stay pending court review.”

However, the court ordered that consideration of the appeals be expedited. Oral arguments on the plan’s legality are scheduled for June 2.

Morrisey said he estimates a final ruling from D.C. Circuit could take at least six months and perhaps stretch into 2017.

Meanwhile, a stay by the Supreme Court could freeze the EPA’s power plan and protect workers as arguments on the merits of the case move forward.

“While we know a stay request to the Supreme Court isn’t typical at this stage of the proceedings, we must pursue this option to mitigate further damage from this rule,” Morrisey said. “Real people are hurting in West Virginia and it’s my job to fight for them.”

West Virginia joined Texas and 23 other states in filing suit against the power plan rule Oct. 23, the very day it was published in the Federal Register. Two other states joined in a Dec. 23 response brief that refuted EPA arguments and supported the granting of a stay.

The states argue the rule exceeds the agency’s authority by double regulating coal-fired power plants and forcing states to fundamentally shift their energy portfolios away from coal-fired generation among other reasons.

Under the EPA’s rule, new large natural gas-fired turbines need to meet a limit of 1,000 pounds of carbon dioxide per megawatt-hour, while new small natural gas-fired turbines need to meet a limit of 1,100 pounds of carbon dioxide per megawatt-hour.

New coal-fired units need to meet a limit of 1,100 pounds of carbon dioxide per megawatt-hour, and have the option to meet a somewhat tighter limit if they choose to average emissions over multiple years, giving those units additional operational flexibility.

Those joining West Virginia and Texas seeking a stay from the Supreme Court are: Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin and Wyoming, along with the Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality and Oklahoma Department of Environmental Quality.

On Jan. 27, Morrisey continued his battle against the agency’s new rule by also challenging a proposal to force cap-and-trade upon states that do not comply with the power plan.

The attorney general announced that he, along with officials from 18 states, objected to the agency’s implementation plan in a public comment letter sent to EPA Administrator Gina McCarthy last week.

The letter stressed the states’ opposition to the underlying power plan, while questioning the EPA’s authority and the plan’s ability to impact climate change.

The states contend the agency’s implementation plan upends state authority, increases electricity prices and violates numerous aspects of federal law.

“The EPA lacks authority to force such radical change,” Morrisey said. “Congress soundly rejected this proposal once, and we urge the EPA to withdraw the rule now as implementation would devastate countless jobs, increase utility costs and jeopardize the nation’s energy grid.”

Separate from the new rule’s illegality, the letter argues the agency lacks authority to impose a carbon credit trading program on states. Such a proposal runs contrary to the Clean Air Act, violates state sovereignty and raises serious constitutional issues, the states contend.

Congress rejected President Barack Obama’s cap-and-trade proposal in 2009. The states argue that effort was unnecessary, if the EPA truly believed the Clean Air Act already granted authority to enact such a program.

Other states that joined in the cap-and-trade letter include: Alabama, Arizona, Arkansas, Florida, Georgia, Kansas, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Wisconsin, and Wyoming, along with the Arizona Corporation Commission, Mississippi Department of Environmental Quality, Mississippi Public Service Commission, New Jersey Department of Environmental Protection and North Carolina Department of Environmental Quality.

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Organizations in this Story

Texas Office of the Attorney GeneralU.S. Environmental Protection Agency (EPA)Virginia Attorney General's Office