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W.Va. AG, eight others file amicus brief in U.S. SC opposing cross-state air pollution regulations

By Jessica M. Karmasek | Nov 8, 2013

CHARLESTON, W.Va. (Legal Newsline) -- West Virginia Attorney General Patrick Morrisey announced Thursday that he and eight other state attorneys general have filed a brief in the U.S. Supreme Court opposing the federal Environmental Protection Agency's new rule on cross-state air pollution.

Morrisey is leading the bipartisan group in authoring the brief. He noted that it is the first time -- he believes -- in two decades that a West Virginia attorney general has taken the lead in authoring a brief in the nation's high court involving the EPA.

West Virginia's amicus, or friend of the court, brief argues that the agency exceeded its authority under the federal Clean Air Act when it promulgated a rule in 2011 announcing new air pollution cuts and imposing federal implementation plans on states.

The 33-page brief argues the CAA requires the EPA to give states an opportunity to decide how to meet new air pollution standards.

"Coal and natural gas are a critical component of our nation's electrical grid and our state's economy. West Virginia is the second largest producer of coal, and our natural gas industry is booming," Morrisey said in a statement Thursday.

"This move by the EPA is just one more effort to slam the door on energy-producing states. It is a blatant attempt to promote a reckless agenda that picks winners and losers and puts our nation's goal for energy independence in a tenuous position."

Also joining the brief are the attorneys general of Arizona, Arkansas, Kentucky, Missouri, Montana, North Dakota, South Dakota and Wyoming.

The brief supports 15 other states, as well as industry groups and labor organizations, who sued the EPA on the same issue in 2011.

Click here to read the complete brief.

In August 2012, the U.S. Court of Appeals for the District of Columbia Circuit struck down the regulation, saying it "exceeds the agency's statutory authority."

The Supreme Court agreed to review the rule earlier this year.

"Our office is very concerned about the Environmental Protection Agency's cross-state air pollution rule targeting coal- and natural gas-fired power plants," Morrisey said. "The agency's rule imposes one-size-fits-all federal plans on power plants and utilities, costing them $2.4 billion per year to comply.

"This issue is something that I thought our office should have been involved in fighting aggressively when the regulations were announced, and I believe this step will help protect West Virginia's interests."

Morrisey said attempts by the EPA and the Obama administration to control emissions from power plants will have real-life consequences on West Virginians who make their living in the energy sector.

"I've seen little from the White House or the EPA on what people in Boone, Marshall, Logan, Marion, Mingo, Monongalia and other counties around the state should do when their local coal mines have layoffs," he said. "Nor have they said what everyone should do when their power bills go up.

"West Virginia cannot idly sit by and allow politicians and bureaucrats in Washington, D.C., to cripple our economy."

The parties to the case will present oral arguments before the Supreme Court in December. A decision is expected by June.

From Legal Newsline: Reach Jessica Karmasek by email at

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