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W.Va. AG leads 14-state coalition in filing FOIA request over Clean Power Plan publication delay

By Jessica Karmasek | Oct 7, 2015


CHARLESTON, W.Va. (Legal Newsline) - West Virginia Attorney General Patrick Morrisey and 13 other state attorneys general want to know why publication of the much-maligned Clean Power Plan rule has been delayed.

Morrisey announced Wednesday that West Virginia along with Arizona, Arkansas, Colorado, Florida, Georgia, Kentucky, Louisiana, Nebraska, North Dakota, Oklahoma, South Carolina, Texas and Wisconsin have filed a Freedom of Information Act, or FOIA, request for communications between the federal Environmental Protection Agency and Office of the Federal Register regarding the rule’s publication.

“Publishing a rule typically occurs much faster than it has in this case,” Morrisey said in a statement accompanying the seven-page request.

“Our goal is to understand the cause behind the unusually long delay between the finalization and publication of the Clean Power Plan.”

EPA Administrator Gina McCarthy signed the rule as final Aug. 3, but it has yet to be published in the Federal Register.

States are not permitted to file a petition for review against the EPA under the Clean Air Act until the rule is published. As a result, states must wait until the publication process is complete before asking a court to stop the agency’s “unlawful” actions, Morrisey noted.

“We want to help the public understand why one of most widely criticized rules in our nation’s history is being subject to such unexplained delays,” he said. “This harms the states and undermines the availability of review by our courts.”

Morrisey contends states are experiencing “significant and irreversible harm” attempting to comply with the EPA’s demands because the now-final Clean Power Plan rule forces certain deadlines for plan submissions by the states regardless of the date of publication.

“The impacts of this rule are already devastating to West Virginia and across the United States,” the attorney general said.

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.

Last month, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit shot down a petition filed by a group of 15 attorneys general -- including Morrisey -- asking it to issue an emergency stay to postpone deadlines imposed by the rule.

The D.C. Circuit said the states did not satisfy the “stringent standards that apply to petitions for extraordinary writs that seek to stay agency action.”

Morrisey led the coalition of attorneys general in filing the petition. Also signing on were the attorneys general of Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, Wisconsin and Wyoming.

Morrisey explained that a stay of a federal rule typically would not be sought until the lawsuit challenging it is filed, which would usually occur once the rule is published in the Federal Register. In most cases, the obligations imposed by a new rule are tied to the date of publication.

However, the rule hadn’t yet been published and the EPA chose to make the states’ obligations effective immediately.

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

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