CHARLESTON — West Virginia Attorney General Patrick Morrisey and other state AGs have asked the U.S. Supreme Court to issue an emergency stay on the implementation of the U.S. Environmental Protection Agency’s new rule on existing coal-, natural gas- and oil-fired power plants.
The July 23 filing co-led by Morrisey came days after the U.S. Court of Appeals for the District of Columbia Circuit’s refused to block the rule in a July 19 filing.
Morrisey’s office says the recently release EPA rule would force power plants fueled by coal or natural gas to capture smokestack emissions using currently unworkable technologies or shut down. The AG’s office says the rule would regulate those plants under the Clean Air Act by imposing more stringent emissions standards.
In May, Morrisey and Indiana AG Theodore “Todd” Rokita led a coalition of 25 states in a lawsuit asking the D.C. Circuit to declare the rule unlawful. West Virginia and Indiana again co-led the coalition in the Tuesday filing.
“Our position remains the same: this rule strips the states of important discretion while using technologies that don’t work in the real world,” Morrisey said. “Adding injury to unlawfulness, the Biden administration packaged this rule with several other rules aimed at destroying traditional energy providers.”
Morrisey and the rest of the coalition are standing firm on the assertion that the EPA ignored 2022’s rebuke from the U.S. Supreme Court in West Virginia v. EPA.
“The landmark West Virginia v. EPA is clear that Congress placed real limits on what the EPA can do, and we will ensure those limits are upheld,” Morrisey said. “This green new deal agenda the Biden administration continues to force onto the people is setting up the plants to fail and therefore shutter, altering the nation’s already stretched grid. We need the plants to stay open.
“This is yet another attempt of unelected bureaucrats to push something the law doesn’t allow.”
In the latest Supreme Court filing, the AGs refer to the West Virginia v. EPA case numerous times.
“Faced with this recognizable story, one might at least expect a stay to be an easy call,” they say in the filing. “But a D.C. Circuit panel — including the same two judges who authored the now reversed decision that spawned West Virginia — denied applicants’ request for one.
The panel’s one-page order obliquely held that the record supported EPA’s decisions on what a ‘best system of emission reduction’ would look like for coal- and natural-gas-fired facilities, ignoring a breakdown from players from all corners of the market explaining why that’s not so.
“Worse still, it refused to acknowledge that West Virginia applies, apparently concluding that source-level measures never present a ‘major question’ no matter what practical effects they might have. And adding injury to insult, the court concluded that the lack of a stay would harm nobody — even though regulators, industry experts, and reams of sworn statements say otherwise. The rule now continues to race ahead.”
The AGs say the Supreme Court again should act “to ensure a critical industry is not irreparably damaged by an unlawful regulatory campaign that’s likely to be set aside,” saying the court should grant their request and stay the entire rule.
The other states that are part of the coalition are Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and Wyoming.