By Robert Walton | October 23, 2015
- The final U.S. Environmental Protection Agency's Clean Power Plan rule was published in the Federal Register this morning, setting off a 90-day period for comments and opening the door for two dozen states to file legal challenges.
- The rule was published in three packages, including the final CPP, standards for modified sources and a proposed federal compliance strategy.
- The rule's publication means states and energy companies who were earlier rebuffed by the legal system for filing premature challenges can now take their case to court. Already, a coalition of 24 states and fossil fuel interests hasfiled suit to challenge the regulatory package, and separate challenges are expected from other mining and fossil fuel interests in coming weeks.
More than two months after final Clean Power Plan plan was announced, the Obama Administration has published the final rule in the Federal Register, formally setting off the public comment period and opening the door to numerous legal challenges.
A coalition of 24 states has teamed up a coal company to challenge the plan, which calls for a nationwide 32% reduction in greenhouse gas emissions by 2030 below 2005 levels. West Virginia Attorney General Patrick Morrisey, who is leading the challenge, said the agency overstepped the regulatory authority granted to it under the Clean Air Act, a landmark clean air package passed first in 1970 and updated in 1990.
“EPA claims to have sweeping power to enact such regulations based on a rarely-used provision of the Clean Air Act but such legal authority simply does not exist,” he said, according to The Hill. The coalition filed its challenge with the U.S. Court of Appeals for the District of Columbia Circuit.
Over the summer, courts twice tossed out a challenge filed by Oklahoma, saying the state would need to wait for the final rule. Observers expect a lengthy legal battle, with the ultimate showdown likely coming before the U.S. Supreme Court. Clues to how the court may evaluate the case, legal scholars told Utility Dive earlier this year, may lie in its decision to remand the agency's Mercury and Air Toxics Standards back to a lower court in June.
Included in the government's publications is the federal strategy for compliance, which the EPA will implement in states that refuse to file compliance plans, or submit inadquate ones. State leaders in Oklahoma, Kentucky, Texas and Wisconsin have said they will refuse to comply with the emissions regulations, and many others are considering similar action, such as requiring any compliance plans to be approved by the state legislature.
EPA acting assistant administrator Janet McCabe told reporters yesterday that the delay between the August announcement of the final targets and the rule being published was standard for a document this size. Publishing the rule was “a routine, standard process," she said, according to Power Magazine.
The comment period ends Jan. 21, 2016.
The Hill: Obama sued by 24 states over coal rule
By Timothy Cama - 10/23/15 08:51 AM ED
A coalition of 24 states and a coal mining company filed lawsuits Friday to challenge the most significant piece of President Obama’s environmental agenda, his signature climate change rule for power plants.
The litigants accuse the Environmental Protection Agency (EPA) of going far beyond the authority Congress granted to it by ordering a significant transformation of states’ electricity generation, moving away from fossil fuels like coal and toward lower-carbon sources like wind and solar power.
They are asking the Court of Appeals for the District of Columbia Circuit to overturn the rule. They also want the court to immediately stop its implementation while it works its way through the courts.
West Virginia Attorney General Patrick Morrisey (R), who is leading the legal fight against the plan, called it “the single most onerous and illegal regulations that we’ve seen coming out of D.C. in a long time.”
On a call with reporters, Morrisey repeated many of the long-held arguments against the rule: that it will hurt his state’s coal mining industry, raise power rates for consumers and risk electricity reliability.
“EPA’s rule is flatly illegal and one of the most aggressive executive branch power grabs we’ve seen in a long time,” he said. “The EPA cannot do what it intends to do legally.”
Morrissey said he wants the court to rule on a stay “as soon as possible.” He noted it took a federal judge about a month to delay an EPA water regulation earlier this month, and said that could be a “guidepost” for how long litigation might take.
The climate rule, dubbed the Clean Power Plan, seeks a 32 percent cut in the power sector’s carbon emissions by 2030, compared with 2005 levels. Each state has been assigned a specific emissions goal based on its unique circumstances, with flexibility in how the goals are met.
West Virginia and Murray led a similar coalition in two lawsuits earlier this year against the regulation that were deemed premature by the D.C. court. The first was before the final rule had been announced, and the second was in August, before it was published in the Federal Register.
The Obama administration has been steadfast in its defense of the legal backing of the rule.
The EPA said its rule is legal and will pass all court challenges.
“The Clean Power Plan has strong scientific and legal foundations, provides states with broad flexibilities to design and implement plans, and is clearly within EPA’s authority under the Clean Air Act,” EPA head Gina McCarthy said in a Friday statement.
“We are confident we will again prevail against these challenges and will be able to work with states to successfully implement these first-ever national standards to limit carbon pollution the largest source of carbon emissions in the United States,” she said.
The West Virginia and Murray lawsuits came the day the rule was published in the Federal Register, the first day court challenges can legally be filed.
The states joining West Virginia are Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, Ohio, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, Arizona and North Carolina.
The attorneys general of 15 liberal states, along with the District of Columbia and New York City, are planning to intervene in the lawsuit to support the EPA.
Those state and city officials, led by New York State, said in August that they “fully anticipate defending the rules if they are challenged in court.”
Friday also marks the first day lawmakers can file challenges under the Congressional Review Act, which allows Congress to quickly overturn regulations.
Congressional Republicans are planning to file resolutions quickly against the climate rule, but Obama has promised to veto any such legislation.
Devin Henry contributed.
This story was updated at 10:29 a.m.