CHARLESTON — West Virginia Attorney General Patrick Morrisey is leading a 19-state coalition in asking the U.S. Supreme Court to take action to stop an appeals court ruling that would give the Environmental Protection Agency what he calls "virtually unlimited authority to regulate wide swaths of everyday life with rules that would devastate coal mining, increase energy costs and eliminate countless jobs."
The coalition filed a petition April 29 arguing that a ruling from the U.S. Court of Appeals for the District of Columbia Circuit violates the constitutional separation of powers. It contends the lower court inappropriately interpreted Section 111 of the Clean Air Act as authorizing EPA to sidestep Congress to exercise broad regulatory power that would radically transform the nation’s energy grid and force states to fundamentally shift their energy portfolios away from coal-fired generation.
The coalition says the lower court erred in using a small provision of federal law to grant EPA broad authority – without congressional input – to unilaterally decarbonize virtually any sector of the economy, including factories and power plants, as well as the millions of homes and small businesses that use natural gas for heat.
“This wildly expansive power to regulate factories, hospitals and even homes has tremendous costs and consequences for all Americans, in particular West Virginia’s coal miners, pipeliners, natural gas producers and utility workers as well as the countless others who rely upon their success,” Morrisey said. “If EPA lacks such expansive authority, as we argue, the Supreme Court should make that clear now. Any further delay will impose costs the energy sector can never recoup and force states to sink even more years and resources into an enterprise that is – at best – legally uncertain.
“The appeals court ruling seeks to transform EPA from serving as an environmental regulator into a central energy planning authority – yet it was never designed to have so much power over states and the livelihood of American families."
Morrisey was successful in getting the Supreme Court to block a similar attempt by President Barack Obama, and he says the more recent appeals court ruling would grant EPA even greater authority than President Barack Obama’s EPA originally claimed.
Now, Morrisey cites his earlier victory and the costs of President Joe Biden’s proposals in arguing for the Supreme Court to step in and define the reach of EPA’s authority once and for all.
Without the Supreme Court’s intervention, Morrisey and the coalition argues the unlawful ruling could set a devastating standard and lead to decisions of great economic consequence based upon unlawful EPA regulations, not the rule of law.
The petition also contends the appeals court ignored a February 2016 stay instituted by the Supreme Court, which the coalition argues should have hinted that the high court viewed existing law as limiting EPA’s authority – not expanding it.
The petition further cites a prior case, Michigan v. EPA, as an example of when perception of EPA’s power amid pending litigation forced regulated entities to comply with regulations that the Supreme Court eventually deemed unlawful.
The coalition argues that if market forces could have been shaped so dramatically amid a pending case, delaying review likely will lead to even more significant and irreparable change.
West Virginia led the April 29 petition with support from attorneys general in Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wyoming and the governor of Mississippi.