Jessica Karmasek Feb. 15, 2016, 8:00pm


West Virginia Attorney General Patrick Morrisey, joined by Texas Attorney General Ken Paxton, says states should understand they have no legal obligation to continue spending funds to comply with a suspended and likely unlawful Clean Power Plan.

On Tuesday, the U.S. Supreme Court sided with nearly 30 states in granting a stay of the Environmental Protection Agency’s new rule.

Morrisey and Paxton, who led the coalition of 29 states and state agencies and who are spearheading its challenge to the rule before the U.S. Court of Appeals for the District of Columbia Circuit, sent a letter Friday to the National Association of Regulatory Utility Commissioners and National Association of Clean Air Agencies. The groups represent state environmental and utility regulators across the nation.

“We understand that your organizations have been engaged in significant discussion about the meaning of the stay for the States, and heard yesterday from EPA Administrator Gina McCarthy, who urged States to continue to take voluntary steps toward compliance with the Clean Power Plan,” the attorneys general wrote.

“As the chief legal officers for two States involved in obtaining the stay, we want to ensure that States understand that there is no legal obligation to continue to spend taxpayer funds on compliance efforts and that, in the unlikely event the Power Plan is ultimately upheld by the courts more than a year from now, there will be ample time then to restart those efforts.”

Morrisey and Paxton continued, “The result of the stay is clear: the Power Plan has no legal effect whatsoever during the entire judicial review process. In granting the stay, the Supreme Court considered whether the Power Plan is likely unlawful and whether it is causing irreparable harm now.

“We believe the Court’s decision to grant the stay for the duration of the litigation -- including any Supreme Court review -- means that the States, their agencies, and EPA should put their pencils down. Any taxpayers dollars spent during the judicial review process are unnecessary and likely to be entirely wasted.”

The attorneys general contend the stay freezes any deadlines associated with the power plan, including those requiring states to submit initial and final compliance plans by September 2016 and September 2018 respectively.

Morrisey and Paxton point out that the EPA conceded as much, arguing to the Supreme Court that the granting of a stay meant deadlines associated with the rule “would be substantially delayed.”

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.

Last month, the D.C. Circuit denied a stay request by the states, saying the petitioners “have not satisfied 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.

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

Those states that joined West Virginia and Texas in seeking a stay from the Supreme Court include: Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin and Wyoming, along with the Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality and Oklahoma Department of Environmental Quality.

Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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