W.Va. AG objects to EPA's new power plant rules

CHARLESTON, W.Va. (Legal Newsline) - West Virginia Attorney General Patrick Morrisey has sent a letter to the administrator of the U.S. Environmental Protection Agency detailing legal objections to the EPA's proposed rule for existing power plants.

Morrisey's letter to Gina McCarthy, the administrator of the EPA, outlines numerous and specific legal objections to the EPA's plan to regulate carbon dioxide emissions for existing power plants.

Morrisey described the plan as legally flawed and urged the EPA to immediately withdraw its proposal.

"As the chief legal officer for the state of West Virginia, I respectfully request that you withdraw the proposed rule immediately, because EPA lacks the legal authority to adopt that rule," Morrisey states in his letter. "In the legal memorandum....that was issued together with and incorporated by reference into the proposed rule, EPA offers only one legal basis for the rule: the rarely invoked Section 111(d) of the Clean Air Act."

The problem with Section 111(d) of the Clean Air Act is that it affirmatively "excludes precisely what EPA is attempting to do in the proposed rule," according to the letter.

In the letter, Morrisey alleges that the EPA admitted the proposed rule violates the "literal" terms of the Clean Air Act, and it attempted to justify this violation of the CAA by asserting that a clerical error Congress made when amending the Act in 1990 rendered the Act unclear, thereby permitting the agency to regulate.

Morrisey says in the letter, "[i]t is simply unconscionable for EPA to go forward with this massive and costly regulation based entirely upon what it has admitted to be a clerical 'drafting error.'"

The EPA previously issued regulations under Section 112, which it estimates will cost power plants more than $9 billion dollars per year in order to comply.

Morrisey says the law does not permit double regulation of these power plants.

"The EPA based its regulations upon what it admits is a clerical error, which does not even appear in the Clean Air Act," Morrisey said. "The proposed rule is yet another example of the president's disregard for the rule of law."

Morrisey said if the issue of climate change is to be addressed, it should be addressed by Congress.

"Yet, in its zeal to achieve what the president considers to be a 'legacy issue,' the EPA has ignored this most basic principle and has clearly violated the Clean Air Act," Morrisey said.

Morrisey said his office is happy to assist the EPA in helping to achieve responsible environmental protection that does not destroy the livelihoods of thousands of West Virginians and that comports with the rule of law

"But, what the EPA cannot do is blatantly violate the law in order to achieve its policy goals," Morrisey said. "That is exactly what the agency is attempting to do here."

From Legal Newsline: Kyla Asbury can be reached at classactions@legalnewsline.com.