Missouri to join lawsuit challenging EPA’s Clean Power Plan

By Jessica Karmasek | Oct 14, 2015


JEFFERSON CITY, Mo. (Legal Newsline) - Missouri plans to join more than 20 other states in suing the Environmental Protection Agency for exceeding its authority in issuing its Clean Power Plan, which sets strict limits on carbon emissions for each state.

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.

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

In a speech at the Missouri Electric Coop’s annual meeting in Branson Friday, Koster explained that he supports Missouri’s ongoing efforts to produce energy more cleanly and efficiently, but said the EPA’s plan sets a compliance schedule that is economically risky and robs the state of its competitive advantage in low consumer and industrial electrical rates.

“Cleaner energy production is an important goal, and one Missouri’s energy producers are already working toward,” the attorney general said.

Koster noted that over the past decade Missouri utilities have added more than 2,200 megawatts of generating capacity from wind power and other renewable resources.

Despite this, the attorney general said the state’s energy producers estimate that complying with EPA’s deadlines would cost the state more than $6 billion.

“Renewable energy is a vital piece of our state’s energy portfolio,” Koster said. “It is essential, however, that we achieve this goal in an economically responsible way that makes sense for Missouri.”

The attorney general pointed to his state’s past experiences with the EPA as justification for his skepticism.

During Koster’s tenure as attorney general, Missouri successfully challenged new EPA regulations regarding mercury emissions and water rules, arguing in each case that the agency unlawfully encroached on the state’s sovereign authority to regulate its air and water.

“I will continue to fight against federal overreach and to keep Missouri strong,” Koster told meeting attendees last week.

He said he intends to join with other states in challenging the new regulations when they are formally published.

States are not permitted to file a petition for review against the EPA under the Clean Air Act until the rule is published. The EPA has not publicly announced a publication date, prompting some states to file a Freedom of Information Act request.

Last week, attorneys general from West Virginia along with Arizona, Arkansas, Colorado, Florida, Georgia, Kentucky, Louisiana, Nebraska, North Dakota, Oklahoma, South Carolina, Texas and Wisconsin said they were filing a FOIA request for communications between the EPA and Office of the Federal Register regarding the rule’s publication.

“Publishing a rule typically occurs much faster than it has in this case,” West Virginia Attorney General Patrick Morrisey, who is leading the charge, said in a statement accompanying the states’ 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.”

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.”

A stay of a federal rule typically is not sought until a 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 hasn’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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