W.Va, other states file reply in Clean Power Plan stay request

By Jessica Karmasek | Feb 9, 2016

WASHINGTON -- West Virginia Attorney General Patrick Morrisey, along with officials from 30 other states, told the U.S. Supreme Court in a filing last week their case against the Environmental Protection Agency is “truly extraordinary” and that the agency’s Clean Power Plan would impose the largest burden states have ever been asked to carry.

Morrisey and Texas Attorney General Ken Paxton led the coalition of states in filing a reply to the EPA’s response.

On Jan. 26, the coalition asked Chief Justice John Roberts for a stay of the power plan. The next day, the chief justice ordered the federal agency to respond to the states’ arguments, which the EPA did Feb. 4.

“Today’s filing underscores why many thousands of hours will be wasted and millions of dollars needlessly spent by the states without a stay,” Morrisey said in a statement Feb. 5. “We believe such spending, as well as the loss of jobs, would be unnecessary as we remain confident that the EPA has exceeded its legal authority by attempting to transform itself from an environmental regulator into a central energy authority.”

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

“Left unstayed, the Power Plan will force massive and irreversible changes in terms of state policies and resources, power plant shutdowns, and investments in wind and solar power,” the states wrote in their 42-page reply last week. “The Plan will require States to spend thousands of hours and millions of dollars in the next year designing state plans, while forcing them to change their laws and regulatory approaches.

“Indeed, absent a stay, the States will need to approve new sources of energy and other capital investments, which approvals will necessarily include hikes in energy rates for consumers, to defray the cost of Power Plan-driven projects. Simply put, if a stay is denied, the Power Plan ‘will immediately and significantly impact nearly every regulatory decision affecting the energy industry in’ the States.”

The states argue that the EPA’s opposition “tellingly avoids” two cases that “most clearly” demonstrate the need for a stay in the case: Utility Air Regulatory Group v. EPA in 2014 and Michigan v. EPA in 2015.

“The UARG case is given all of one paragraph on pages 41 and 42 of EPA’s 73-page filing, and the Michigan decision is not squarely addressed until page 68,” the coalition noted. “The reason for this spare treatment is obvious: EPA has no answer to either case.

“As the States explained in their Application, the Power Plan is clearly unlawful for a number of reasons, but most obviously it cannot be reconciled with UARG. In that case, this Court told EPA that it cannot make ‘decisions of vast economic and political significance’ under a long-extant statute, like the Clean Air Act, without ‘clear congressional authorization.’ And yet that is precisely what EPA has done in employing the ‘generation shifting’ measures at the heart of the Power Plan.”

The states continued, “Buried on page 41 of its opposition, EPA concedes the point, admitting that Section 111(d) of the Clean Air Act ‘does not expressly address such measures.’ EPA also has no answer to the fact that in Michigan, the agency unlawfully extracted billions of dollars in compliance from power plants before this Court could even review the rule, and is attempting to do so here again but on a much larger scale.”

If the Supreme Court does not grant the stay, the EPA will succeed in “baking into the system” its generation-shifting goals, regardless of the legality of the rule, the coalition argues.

“The States do not ask for this Court’s intervention lightly. But this case is truly extraordinary, given that the Power Plan imposes the largest burden the States have ever been asked by EPA to carry, on the basis of a rule that is flatly contrary to this Court’s recent case law when dealing with the same agency, and the same pollutants,” they wrote. “And EPA is doing this in the shadow of its own brazen abuse of its authority, where it bragged on its public blog that it had rendered this Court’s decision in the States’ favor an effective nullity.

“EPA should not be permitted to impose its generation-shifting agenda on the sovereign States before the courts have had the opportunity to rule on the lawfulness of EPA’s approach.”

Last month, 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 has 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.

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.

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U.S. Environmental Protection Agency (EPA) U.S. Supreme Court Virginia Attorney General's Office

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