Indianapolis - Today, the U.S. Court of Appeals for the District of Columbia Circuit dismissed State of West Virginia et al v. Environmental Protection Agency, Case No. 14-1112. Indiana was one of fourteen petitioners in the case, which asked the Court to review the legality of the EPA’s proposed regulations limiting carbon dioxide emissions from existing power plants. The Court held that it does not have the authority to review proposed agency rules. In response, Governor Mike Pence issued the following statement.
“The Court’s decision is discouraging, but it does not dampen our resolve to use every legal means at our disposal to stop burdensome regulations. Though the Court declined to let the litigation proceed because of procedural matters, the Court’s decision did not speak to the substance of our claim that the EPA lacks the authority to regulate carbon dioxide emissions from existing power plants in the way proposed. We will renew our claim and seek to invalidate the regulations once they are finalized later this summer.”
Maureen Groppe Star Washington bureau, 12:45 p.m. EDT June 9, 2015
WASHINGTON – A federal appeals court Tuesday put the brakes on a challenge by Indiana and 14 other states to pending federal regulations to curb greenhouse gas emissions from power plants.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said the rules can't be challenged until they're finalized by the Environmental Protection Agency.
"Petitioners are champing at the bit to challenge EPA's anticipated rule restricting carbon dioxide emissions from existing power plants," wrote Judge Brett Kavanaugh. "They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule."
The EPA is expected to finalize the regulations this summer, after reviewing millions of comments it has received since the rule was proposed last June.
Under the initial proposal, Indiana would have to reduce by 20 percent the amount of carbon dioxide generated per unit of electricity by 2030.
Indiana's power plants produce more carbon dioxide than plants in all but three other states. [emphasis added]
Gov. Mike Pence has said the state will "use every legal means at our disposal" to stop the regulations, which he said will cause power rates to go up.
Tomas Carbonell, an attorney for the Environmental Defense Fund - which backed the EPA - said states were trying to do an end run around the public participation process.
"Today's decision is a big win for clean and healthy air, and an important victory for a fair and democratic rulemaking process," he said.
Mike Duncan, head of the American Coalition for Clean Coal Electricity, said the industry group is disappointed in the decision, but is preparing for the next step.
"States and industry are already working to ensure that when the rule is final we are prepared to step in and stop the implementation of these devastating regulations," Duncan said.
The states, as well as two major coal companies, had argued to the appeals court it's already clear the EPA has overreached its authority.
The challengers said the EPA is ignoring a provision in the Clean Air Act that prohibits the agency from regulating a pollutant from a power plant if other types of pollutants from the plants are already being regulated.
The states argue that when the law was amended in 1990, Congress barred the EPA from regulating the same pollution source under the section of the law being used in the pending rule, if that source is already being regulated under a different part of the law. Therefore, because the EPA is already restricting mercury and other hazardous emissions from power plants, they argue, the agency can't now restrict greenhouse gas emissions from the same plants.
The EPA says the restriction in the law is against regulating the same pollutant twice, not regulating different pollutants from the same source.
Contact Maureen Groppe at mgroppe@gannett.com or @mgroppe on Twitter.
