Jessica M. Karmasek May 24, 2013, 4:00pm

CHARLESTON, W.Va. (Legal Newsline) -- West Virginia Gov. Earl Ray Tomblin and Attorney General Patrick Morrisey said Friday the state, joined by two others, has filed an amicus brief asking the nation's highest court to hear a challenge to rules allowing the federal government's regulation of greenhouse gas emissions.

The brief, filed by West Virginia, Kansas and Montana, asks for a writ of certiorari, or review, by the court. It was filed Thursday, and follows a ruling by the U.S. Court of Appeals for the District of Columbia in favor of the Environmental Protection Agency in four consolidated cases.

The three states argue that if allowed to stand, the D.C. Circuit's ruling will "fundamentally alter" the U.S. Constitution's separation of powers and grant "unprecedented authority" to the EPA and other federal agencies.

More specifically, they contend the EPA's so-called "Tailoring Rule" contradicts explicit provisions of the federal Clean Air Act and establishes new compliance levels for greenhouse gas emissions that are significantly higher than the levels specified in the statute.

The three amicus states, in their brief, maintain that the U.S. Supreme Court should hear the case to clarify that the EPA has misinterpreted the CAA and acted outside the scope of its legal and constitutional authority.

"In addition to this brief, I wrote to the President last month urging him, in the strongest of terms, to direct the EPA to discontinue its anti-coal policies," Tomblin said in a statement Friday. "The EPA's proposed limits on greenhouse gas emissions threaten the livelihood of our coal miners to the point of killing jobs and crippling our state and national economies, while also weakening our country's efforts toward energy independence.

"I hope the high court recognizes the urgency and critical importance of our brief for all Americans."

Morrisey said the EPA's rules regarding greenhouse gas emissions are just another example of the federal agency overstepping its role to the detriment of West Virginians.

"The EPA's decision to regulate greenhouse gas emissions in this way will have a devastating impact on the industries that must comply with these rules, as well as consumers," he said.

"Once again, the EPA is moving ahead on an issue with little regard for the plain language of the statute and the people who are directly impacted by these incredible new burdens."

In its ruling last year, the D.C. Circuit affirmed:

- The agency's finding in 2009 that large-scale greenhouse gas emissions endanger public health and welfare;

- The EPA's standards requiring greenhouse gas emission controls on model year 2012-16 cars. Those standards are expected to result in the reduction of 960 million metric tons of carbon dioxide over the life of those vehicles; and

- The agency's "Tailoring Rule," a phase-in of the requirement that new and modified power plants, petroleum refineries and other industrial sources use the "best available control technology" to control their emissions of greenhouse gas pollutants.

From Legal Newsline: Reach Jessica Karmasek by email at

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