Jessica Karmasek Sep. 14, 2015, 10:32am


WASHINGTON (Legal Newsline) - A federal appeals court last week shot down a petition, filed by a coalition of 15 state attorneys general, asking it to issue an emergency stay to postpone deadlines imposed by the federal Environmental Protection Agency’s Clean Power Plan.

On Wednesday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit wrote in its one-page order that the petitioners “have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action.”

West Virginia Attorney General Patrick Morrisey, leading the coalition of attorneys general, filed the petition in August.

Also signing on were the attorneys general of: Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, Wisconsin and Wyoming.

“This rule is the most far-reaching energy regulation in the nation’s history, and the EPA simply does not have the legal authority to carry it out,” Morrisey said in a statement last month. “With this rule, the EPA is attempting to transform itself from an environmental regulator to a central planning agency for states’ energy economies.

“The Clean Air Act was never intended to be used to create this type of regulatory regime, and it flies in the face of the powers granted to states under the U.S. Constitution.”

Morrisey said a stay of a federal rule typically would not be sought until the lawsuit challenging it is filed, which would usually occur once the rule is published in the Federal Register. In most cases, the obligations imposed by a new rule are tied to the date of publication.

However, in this case, the EPA made the unusual choice to make the states’ obligations effective immediately, Morrisey said. Regardless of the date of formal publication, the states already have firm deadlines to submit initial and final compliance plans under the rule.

Morrisey and the other attorneys general argued that court precedent makes clear that a request for a stay is needed to prevent the states from having to expend significant taxpayer resources to begin complying with the rule.

“If we were to wait on the EPA to get this rule published, it could be well into 2016 before the states complete arguments and receive a ruling on a request to stay this rule,” Morrisey said last month. “By that time, many states will already be in the middle of drafting their compliance plans ahead of the September 2016 deadline. We want to ensure that no more taxpayer money or resources are wastefully spent in an attempt to comply with this unlawful rule that we believe will ultimately be thrown out in court.”

He added, “While this request is not typical, the EPA is playing games by putting the risk of a delay in publication entirely on the states.”

Arkansas Attorney General Leslie Rutledge agreed.

“Arkansas should not have to move forward with the burdensome and costly regulations of the Clean Power Plan until the legality of the rule is determined,” she said in a statement last month.

Under the EPA’s proposal, new large natural gas-fired turbines would need to meet a limit of 1,000 pounds of carbon dioxide per megawatt-hour, while new small natural gas-fired turbines would need to meet a limit of 1,100 pounds of carbon dioxide per megawatt-hour.

New coal-fired units would need to meet a limit of 1,100 pounds of carbon dioxide per megawatt-hour, and would have the option to meet a somewhat tighter limit if they choose to average emissions over multiple years, giving those units additional operational flexibility.

Last month, a group of state attorneys general asked the EPA for an administrative stay of the plan while its legality was reviewed by the courts.

The agency responded saying it would take the request “under consideration.”

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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