Chris Dickerson Jun. 11, 2015, 9:15am


WASHINGTON – West Virginia’s move to have a federal court review the Environmental Protection Agency’s proposed Clean Power Plan has been denied.

West Virginia Attorney General Patrick Morrisey led the state push for the review. He expressed disappointment with the ruling, which was filed Tuesday in the United States Court of Appeals for the District of Columbia and was a 3-0 decision. Judge Brett Kavanaugh wrote that the court only has authority to review completed agency rules, and the Clean Power Plan has yet to be finalized.

“When we filed this case last summer, we knew there would be procedural challenges, but given the clearly illegal nature of the rule and the real harm occurring in West Virginia and throughout the country, we believed it was necessary to take all available action to stop this rule as soon as possible,” Morrisey said.

“We stand by the arguments we made to the court, and believe that the litigation has further revealed the weakness of EPA’s arguments on the merits.”

Morrisey, who led a group of 15 states opposing the EPA plan, said he still believes the rule is unlawful.

“The narrow decision today, which put great weight on the fact that the final rule is now imminent given the time it has taken to litigate this suit, said nothing about the legality of EPA’s rule,” he said. “As the court recognized, the rule will be final very soon, and we look forward to continuing to press the issue.

“We will continue to take every available step to protect our citizens and the State of West Virginia from this unlawful power grab by Washington bureaucrats.”

The EPA’s plan would create a national carbon emissions reduction goal and will require states to make a 30 percent cut by 2030. It’s part of President Barack Obama’s push to reduce pollution from coal-fired power plants, and it would greatly affect West Virginia.

Morrisey says the plan would force states to regulate coal-fired power plants that already fall under the Department of Defense’s hazardous air pollutant program. The EPA’s Clean Air Act doesn’t allow such double regulation.

In his opinion, Kavanaugh said the states are a bit too early in their challenge.

They are “champing at the bit to challenge the agency’s anticipated rule,” he wrote. “But the EPA has not yet issued a final rule. It has issued only a proposed rule.”

U.S. Senator Shelley Moore Capito also expressed disappointment in the ruling.

“I remain confident in the merits of this case and strongly believe that the court will ultimately strike down this administration’s unprecedented power grab,” Capito, R-W.Va., said Tuesday. “As the state of West Virginia continues to pursue all available legal options, I am working diligently with my colleagues in the Senate to garner support for the ARENA Act, the principal legislative vehicle to roll back the misguided ‘Clean Power Plan.’

“Today’s ruling further underscores the need for this commonsense legislation, which will provide affordable, reliable energy and protect the jobs our vital energy sector supports.”

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