Abby L. Harvey
GHG Daily
1/27/2016
Late Tuesday afternoon, West Virginia Attorney General Patrick Morrisey and Texas Attorney General Ken Paxton, along with officials from 29 other states and state agencies, filed an application with the U.S. Supreme Court to stay the Environmental Protection Agency’s carbon emissions standards for existing coal-fired power plants. The U.S. Court of the Appeals for the District of Columbia Circuit rejected an initial stay request last week on the basis that the petitioners had “not satisfied the stringent requirements for a stay pending court review.”
Those joining West Virginia and Texas seeking a stay from the Supreme Court are the states of 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 the Oklahoma Department of Environmental Quality. They hope to stop implementation of the EPA regulation while legal challenges to the rule move through the court system.
The new stay request draws heavily on a Supreme Court ruling on the EPA’s Mercury and Air Toxics Standards (MATS) last year. In that case, the high court found that the EPA should have considered the cost of implementing MATS before moving forward with the rule. By the time MATS made it to the Supreme Court, utilities had invested billions of dollars in coming into compliance with the rule. The Supreme Court returned the MATS rule to a lower court.
The states argue in the new stay request that while the carbon standards states do not require states to meet any emissions reductions targets until 2020, a significant amount of money will be invested ahead of that time, even as the rule goes through the judicial system. If at the end of this process the rule is overturned, states and utilities will be unable to recover funds invested in compliance, the stay request said.
“Only a stay from this Court now can ensure that EPA will not, in another year or two, once more boast that it has rendered this Court’s review practically meaningless. Absent a stay, the Power Plan will—throughout the lifespan of this litigation—force massive, irreversible changes in terms of state policies and resources, power plant shutdowns, and investments in wind and solar power,” the stay request says.
The Clean Power Plan, requires states to develop action plans to meet federally set, state-specific carbon emissions reduction goals. Opponents argue the rule would be extremely costly and would essentially allow the administration to strong-arm states into shifting from coal to renewable energy. At the core of the arguments against the rule is a belief that the EPA is acting outside its authority under the Clean Air Act in promulgating the rule in the first place.
The rule, developed under Section 111(d) of the Clean Air Act, was finalized on Aug. 3, but under the act legal challenges could not be brought until it was published in the Federal Register, which happened on Oct. 23. Lawsuits began to roll in immediately afterward. Morrissey led the way with West Virginia and was eventually joined by 27 states and more than 50 electric companies, utilities, and cooperatives, as well as a slew of trade organizations.
While those opposed to the Clean Power Plan did not get their stay, the D.C. Court of Appeals did order that “consideration of these appeals be expedited.” Under the schedule laid forth in the order, initial briefs should be filed by April 15 and final briefs should be filed by April 22. The order schedules oral argument of the case for 9:30 a.m. June 2, with a potential rollover to June 3.
