Jessica Karmasek Feb. 10, 2016, 7:59am


WASHINGTON (Legal Newsline) - The U.S. Supreme Court on Tuesday sided with nearly 30 states in granting a stay of the Environmental Protection Agency’s Clean Power Plan.

West Virginia Attorney General Patrick Morrisey and Texas Attorney General Ken Paxton led the coalition of states in asking Chief Justice John Roberts for a stay of the power plan Jan. 26.

Roberts ordered the federal agency to respond to the states’ arguments. The EPA filed its response Feb. 4; the states filed a reply Feb. 5.

The rule, the states contend, illegally forces them to overhaul their energy portfolio and does so without congressional authority, costing countless jobs, increasing electricity prices and jeopardizing energy reliability.

Morrisey, in a statement, praised the high court’s decision, explaining that it prevents the agency from enforcing its power plan until the court challenge concludes, providing immediate relief for workers and businesses across the country.

He noted the Supreme Court found the coalition’s arguments strong enough to stop the EPA even before the lawsuit concludes.

“Make no mistake -- this is a great victory for West Virginia,” Morrisey said.

“We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues.”

Paxton also applauded the court’s decision.

“This is a major victory for Americans who feared the loss of their jobs, not to mention anyone concerned over the potential of skyrocketing electric bills and the overall quality of our electric grid,” the attorney general said.

“The Obama Administration clearly exceeded its authority in imposing this plan, which would cost taxpayers and consumers alike hard-earned money in exchange for less-reliable service.”

Last month, the U.S. Court of Appeals for the District of Columbia Circuit denied a similar request by the states, 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.

Morrisey has said he estimates a final ruling from D.C. Circuit could take at least six months and perhaps stretch into 2017.

The Supreme Court’s order now freezes the EPA’s power plan as arguments on the merits of the case move forward.

U.S. Sen. Shelley Moore Capito, R-W.Va., who last year introduced a bill that included a provision to extend the Clean Power Plan’s compliance dates pending final judicial review, said the Supreme Court’s order is a “major step forward.”

“Tonight’s Supreme Court decision recognizes that Americans should not continue to bear the brunt of this administration’s costly regulations when there are serious doubts about their legality,” she said in a statement Tuesday. “This is a major step forward to stop the EPA’s unworkable and overreaching regulations and is consistent with legislation I introduced last year.”

U.S. Rep. David McKinley, R-W.Va., agreed.

“President Obama’s regulations on coal-fired power plants represent a massive overreach that rests on shaky Constitutional ground. The Supreme Court’s decision today is a victory for West Virginia, coal mining families and people everywhere who will face higher utility bills if this plan goes into effect,” he said in a statement Tuesday.

“We will continue to fight Obama’s extreme climate agenda in the courts and in Congress and defend the important role coal plays in our economy.”

The West Virginia GOP also weighed in, crediting Morrisey -- a Republican -- for the victory.

“On countless occasions, Patrick Morrisey has stood with coal miners and hard-working West Virginians and, now, in our nation’s highest court, Morrisey’s perseverance prevailed,” Chairman Conrad Lucas said.

“Obama’s relentless War On Coal has met its match with the brilliant legal mind and hard work of West Virginia’s Attorney General Patrick Morrisey. By halting the President’s crippling EPA power plant regulation, his office has delivered a crushing blow to the Obama administration’s efforts to destroy West Virginia.”

The White House, in response, said it disagreed with the Supreme Court’s decision to stay the new rule but remains confident the agency will prevail in the D.C. Circuit.

“The Clean Power Plan is based on a strong legal and technical foundation, gives States the time and flexibility they need to develop tailored, cost-effective plans to reduce their emissions, and will deliver better air quality, improved public health, clean energy investment and jobs across the country, and major progress in our efforts to confront the risks posed by climate change,” Press Secretary Josh Earnest said. “We remain confident that we will prevail on the merits.”

He added, “Even while the litigation proceeds, the EPA has indicated it will work with states that choose to continue plan development and will prepare the tools those states will need. At the same time, the Administration will continue to take aggressive steps to make forward progress to reduce carbon emissions.”

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.

Those states that joined West Virginia and Texas in seeking a stay from the Supreme Court include: 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 Oklahoma Department of Environmental Quality.

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

Organizations in this Story

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

Office of Texas Attorney General
300 W 15th St
Austin, TX 78701

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

White House
1600 Pennsylvania Avenue Northwest
Washington, DC 20500

Mississippi Department of Environmental Quality
15 E. Amite St
Jackson, MS 39225

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