States file opening briefs against EPA’s Clean Power Plan in D.C. Circuit

By Jessica Karmasek | Feb 22, 2016

The E. Barrett Prettyman Federal Courthouse in Washington, D.C.  

WASHINGTON (Legal Newsline) - Nearly 30 states, lead by West Virginia Attorney General Patrick Morrisey and Texas Attorney General Ken Paxton, on Friday filed opening briefs in their ongoing challenge of the Environmental Protection Agency’s Clean Power Plan.

The states’ briefs were filed in the U.S. Court of Appeals for the District of Columbia Circuit.

Last month, the D.C. Circuit denied a stay request by the states, saying the petitioners did not satisfy “the stringent requirements for a stay pending court review.”

However, the court ordered that consideration of the appeals be expedited. Oral arguments on the plan’s legality are scheduled for June 2-3.

With a final ruling expected to take at least six months -- and perhaps stretch into 2017 -- the states filed a stay request with the U.S. Supreme Court.

Earlier this month, the Supreme Court stayed enforcement of the rule until arguments in the case conclude.

“The bipartisan coalition’s filing demonstrates in detail the EPA’s efforts to transform itself into a central energy planning authority at the cost of West Virginia’s economy and working families,” Morrisey said in a statement Friday. “This rule, which exceeds EPA’s authority and sidesteps Congress, must be stopped.

“The EPA’s far-reaching actions are literally unprecedented, which is undoubtedly one of the major reasons why the U.S. Supreme Court issued its own unprecedented stay last week.”

Morrisey said the states are confident in their arguments against the “job-killing” regulation.

“Relying on an obscure provision of the Clean Air Act, EPA’s Rule seeks to effect an ‘aggressive transformation’ of the mix of electricity generation in nearly every State by systematically ‘decarboniz[ing]’ power generation and ushering in a new ‘clean energy’ economy,” the briefs state. “Although Congress has debated a number of bills designed to achieve that very result, it has not adopted any such legislation.

“Frustrated with Congress, EPA now purports to have discovered sweeping authority in section 111(d) of the Clean Air Act -- a provision that has been used only five times in 45 years -- to issue a ‘Power Plan’ that forces States to fundamentally alter electricity generation throughout the country.”

The states argue that the agency’s “audacious assertion of authority” in the rule is more far-reaching than any of its previous efforts.

“According to EPA, section 111(d) authorizes it to use the States to impose on fossil fuel-fired power plants emission reduction requirements that are premised not just on pollution control measures at the regulated plants, but also (and predominantly) on reducing or eliminating operations at those plants and shifting their electricity generation to competitors, including those not regulated by the Rule,” the briefs state. “Those reduction requirements far exceed what EPA has found may be achieved individually by even a new plant with the agency’s state-of-the-art ‘best system of emission reduction.’

“Rather, the reduction requirements can be met only by shutting down hundreds of coal-fired plants, limiting the use of others, and requiring the construction and operation of other types of facilities preferred by EPA -- a directive EPA euphemistically calls ‘generation shifting.’”

If upheld, the states contend the power plan would lead to “breathtaking expansion” of the agency’s authority.

“EPA’s newly-discovered authority threatens to enable the agency to mandate that any existing source’s owners in any industry reduce their source’s production, shutter the existing source entirely, and even subsidize their non-regulated competitors,” they wrote.

West Virginia joined Texas and 23 other states in filing suit against the power plan rule Oct. 23, the very day it was published in the Federal Register. Two other states joined in a Dec. 23 response brief that refuted EPA arguments and supported the granting of a stay.

The states argue the rule exceeds the agency’s authority by double regulating coal-fired power plants and forcing states to fundamentally shift their energy portfolios away from coal-fired generation among other reasons.

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.

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

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Texas Office of the Attorney General U.S. Environmental Protection Agency (EPA) Virginia Attorney General's Office

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