44 states take sides in expanding legal brawl

Source: Robin Bravender, E&E reporter • Posted: Thursday, November 5, 2015

Nearly every state has taken a side in the court battle that will determine the fate of President Obama’s signature climate change policy.

Yesterday, 18 states led by New York and several cities asked a federal court to allow them to defend U.S. EPA’s Clean Power Plan, a rule to cut greenhouse gas emissions from existing power plants. That pits them against 26 other states and a wide range of industry groups that have asked the U.S. Court of Appeals for the District of Columbia Circuit to strike down the rule.

“I can’t recall a Clean Air Act rule, or other EPA rule, that had 44 states in the mix,” said Joe Stanko, an attorney at Hunton & Williams.

The heavy involvement by states on both sides of the issue demonstrates the importance of the rule, which will require states to slash their power-sector carbon dioxide emissions rates by varying amounts by 2030. Opponents argue that it’ll be devastating to the power sector and force electricity rates to soar, while EPA’s backers insist it’s a necessary step toward tackling climate change.

The states asking today to defend EPA: New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Virginia and Washington. Several states and a county also signed on to the petition, including the District of Columbia; Boulder, Colo.; Chicago; New York; Philadelphia; South Miami, Fla.; and Broward County, Fla.

“The Clean Power Plan requires states to implement standards to reduce greenhouse gas emissions from fossil-fueled power plants, the country’s largest source of such emissions. These emission reductions will help prevent and mitigate harms that climate change poses to human health and the environment, including increased heat-related deaths, damaged coastal areas, disrupted ecosystems, more severe weather events, and longer and more frequent droughts,” the states wrote to the court.

“State and municipal intervenors have a compelling interest in defending the Clean Power Plan as a means to achieve their goal of preventing and mitigating climate change harms in their states and municipalities.”

New York Attorney General Eric Schneiderman (D) today said in a statement, “Climate change represents an unprecedented threat to the environment, public health, and our economy. We no longer can afford to respond to this threat with denials or obstruction.”

Environmental and public health groups have also asked the court to intervene in the legal skirmish on EPA’s behalf (E&ENews PM, Oct. 27).

More than half the states are on the other side of the fight.

Twenty-four states are in a coalition challenging the rule: West Virginia, Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, South Carolina, South Dakota, Texas, Utah, Wisconsin and Wyoming. Oklahoma and North Dakota have filed separate challenges.

State challengers have touted their bipartisan support. Missouri Attorney General Chris Koster and Kentucky Attorney General Jack Conway are Democrats.

Bracewell & Giuliani attorney Jeff Holmstead said today, “The 26 states that have challenged the rule are the most ever to challenge an EPA rule and, as far as I know, any federal action. They represent almost 80 percent of emission reductions required under the [Clean Power Plan].”

He added, “The 18 that are supporting the rule only represent about 12 percent of the reductions required under the rule and include two states that are not even covered by the rule — Vermont and Hawaii.” Holmstead is representing coal industry clients that are also challenging the rule in court.

State challengers are also asking the court to immediately halt the EPA rule, arguing that they’re being “immediately and irreparably harmed” by the regulation. The court is expected to decide whether to grant the request for a stay early next year (E&ENews PM, Oct. 29).

The six states that haven’t taken a side in court: Alaska, Idaho, Mississippi, Nevada, Pennsylvania and Tennessee.

The legal fight over the Clean Power Plan is widely expected to wind up in the Supreme Court and may not be decided until 2018 (Greenwire, Oct. 26).

Separately, a coalition of 16 states, the District of Columbia and New York City filed a request to the appeals court today to intervene in a lawsuit surrounding EPA’s new rule that sets the first-ever carbon dioxide emission standards for new and modified power plants.

Twenty-four states and several industry groups have asked the court to strike down that rule as well (E&ENews PM, Nov. 3).