Jessica Karmasek Jan. 22, 2016, 8:25am


WASHINGTON (Legal Newsline) - The U.S. Court of Appeals for the District of Columbia Circuit on Thursday denied a request by a coalition of states, led by West Virginia, to put the Environmental Protection Agency’s Clean Power Plan on hold.

The D.C. Circuit, in a brief, two-page per curiam order, denied motions for a stay, saying the petitioners “have not satisfied the stringent requirements for a stay pending court review.”

However, the court ordered that consideration of the appeals be expedited. Oral arguments on the plan’s legality are scheduled for June 2.

West Virginia Attorney General Patrick Morrisey said he is disappointed by the court’s decision and is considering filing an appeal with the U.S. Supreme Court to halt “ongoing, irreversible harm” caused by the power plan.

Morrisey argues that the power plan, if left intact, will lead to skyrocketing electricity bills and devastate West Virginia’s coal industry and the “countless” jobs depending upon its success.

“We are disappointed in today’s decision, but believe we will ultimately prevail in court,” he said Thursday. “The court did not issue a ruling on the merits and we remain confident that our arguments will prevail as the case continues.

“We are pleased, however, that the court has agreed to expedite hearing the case.”

West Virginia joined Texas and 23 other states in filing suit against the power plan rule Oct. 23, the very day it was published in the Federal Register. Two other states joined in a Dec. 23 response brief that refuted EPA arguments and supported the granting of a stay.

The states argue the rule exceeds the agency’s authority by double regulating coal-fired power plants and forcing states to fundamentally shift their energy portfolios away from coal-fired generation among other reasons.

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

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

States joining West Virginia and Texas in pushing for a stay were Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin, Wyoming and the Departments of Environmental Quality in Mississippi and North Carolina.

The Mississippi Attorney General’s Office joined the broader coalition’s lawsuit against the rule in late December.

Morrisey said a favorable Supreme Court decision would freeze the EPA’s power plan rule and protect workers, job creators and state agencies from spending “untold resources” to comply with a rule that is likely to be struck down as illegal.

Last month, the U.S. House of Representatives voted to void the EPA’s regulations for new and existing power plants.

The House voted 242-180 to repeal the power plan, which puts carbon emissions limits on existing plants, and 235-188 to block the federal agency’s rules governing emissions from new plants.

The Senate approved nearly identical legislation weeks before.

As expected, Obama vetoed the joint resolution -- not only withholding his signature, but also returning the resolution to the Secretary of the Senate along with a memorandum of disapproval.

Obama called the Clean Power Plan “essential” in addressing greenhouse gas pollution.

“Climate change poses a profound threat to our future and future generations. Atmospheric levels of carbon dioxide, a primary greenhouse gas, are higher than they have been in at least 800,000 years,” he wrote in his Dec. 18 memorandum. “We are already seeing the impacts of climate change, and established science confirms that we will experience stronger storms, deeper droughts, longer wildfire seasons, and other intensified impacts as the planet warms.

“The Pentagon has determined that climate change poses immediate risks to our national security.”

Obama argues the new rule is a “tremendously important” step in fighting climate change.

“By nullifying the Clean Power Plan, S.J. Res. 24 not only threatens ongoing progress toward cleaner energy, but would also eliminate public health and other benefits of up to $54 billion per year by 2030, including thousands fewer premature deaths from air pollution and thousands fewer childhood asthma attacks each year,” he wrote.

James W. Rubin, a partner at the international law firm Dorsey & Whitney LLP and who served for 15 years in the Environment and Natural Resources Division of the U.S. Department of Justice, said he expects a decision on the merits from the D.C. Circuit to come by the end of 2016 -- “not likely in time to avoid September 2016 filings but well before states would have to complete compliance plans,” he added.

“Note that the D.C. Circuit did not issue any opinion and so one cannot tell how the court viewed the ultimate success of petitioners’ merits arguments,” he said in a statement.

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

Organizations in this Story

U.S. Environmental Protection Agency (EPA)
1200 Pennsylvania Ave NW
Washington, DC 20460

Office of West Virginia Attorney General Patrick Morrisey
1900 Kanawha Blvd E
Charleston, WV 25305

Dorsey & Whitney LLP
1801 K Street Northwest
Washington, DC 20006

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