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Tuesday, October 22, 2019

State AGs pitted against each other in potential fight over greenhouse gas emissions

By Jessica M. Karmasek | Jun 24, 2013

CHARLESTON, W.Va. (Legal Newsline) -- West Virginia Attorney General Patrick Morrisey, along with 20 other state attorneys general, is asking the Environmental Protection Agency not to enter into settlement talks with a group of states and various environmental groups.

The 10 states, the District of Columbia and New York City, and several environmental groups, are threatening to sue the federal agency over its alleged failure to timely regulate greenhouse gas emissions from power plants.

In their June 18 response, the 21 attorneys general urged the EPA's acting administrator not to enter into any form of settlement negotiations in the matter or, alternatively, to give all states the opportunity to participate in the resolution of the threatened suit.

In addition to Morrisey, the attorneys general of Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Michigan, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and Virginia signed the letter.

"The proposed regulations will directly impact coal-producing states such as West Virginia," Morrisey said in a statement Friday. "We cannot sit idly by and let other states and the federal government dictate our economic future."

In their April intent to sue letters, the 10 states and others claim the EPA failed to perform its mandatory duties because it failed to finalize a performance standard for greenhouse gas emissions from new power plants within one year of introduction, and issue greenhouse gas emission guidelines for existing power plants.

They claim that the EPA's purported failures violate the Clean Air Act.

In their April letters, the 10 states and others offered to explore "any means of resolving this matter without the need for litigation."

The other group of attorneys general argue in their June letter that those claims lack merit.

Instead, the 21 attorneys general are asking the EPA to refrain from allowing such petitions to "unduly influence" the policymaking process via settlement negotiations.

"Air quality is of equal concern to all states," the letter states. "Appropriate process should not be subjugated, and effective policymaking cannot be forced to fruition, by threatening lawsuits.

"In the event EPA deems it necessary and appropriate to allow the petitioners to commandeer the policymaking process under the threat of litigation, we request notice and an opportunity to participate in the resolution of the notices."

If the proposed new source performance standard were finalized in its current form, it would have a "devastating" impact on West Virginia and numerous other states, Morrisey said Friday.

Essentially, it would prohibit new power plants from using coal unless they implemented costly carbon capture and storage technology, he explained.

"The EPA cannot allow the threat of lawsuits to force its hand in releasing these rules or any other rules. Crafting policy of this magnitude should take place in the light of day, not in closed door settlement negotiations," the attorney general said.

From Legal Newsline: Reach Jessica Karmasek by email at

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