Coal-friendly states line up behind Trump EPA rule

Source: By Jean Chemnick, E&E News reporter • Posted: Monday, October 12, 2020

Some states that rely heavily on coal-fired power appear to be rushing to turn in their compliance plans for EPA’s power plant carbon rule years ahead of schedule.

Lawyers familiar with their plans say West Virginia, Oklahoma and Arkansas could submit at least partial plans to EPA in the coming months, with others following soon after. The attorneys declined to speak on the record to protect their clients’ interests.

The Washington Examiner reported earlier this week that the states and their representatives are moving — nearly two years before the rule requires them to — in the hope of fortifying EPA’s legal defense of the Affordable Clean Energy rule.

EPA last year swapped the stricter Obama-era Clean Power Plan for the ACE rule, which requires today’s coal-fired power plants to make modest heat-rate adjustments on-site and does not set definite emissions guidelines. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments on challenges to the rule swap yesterday.

West Virginia, Oklahoma and Arkansas staunchly opposed the Obama-era standards, with West Virginia’s attorney general leading litigation against them. They secured a Supreme Court stay of the rule in 2016, prior to Trump’s election.

Now the states seem to be preparing to make the case that, because they have already formulated plans under the Trump rule, they shouldn’t soon be forced to comply with a new one.

But environmental lawyers warn that early submission — or even approval — of state plans won’t insulate the ACE rule from court challenge. Nor will it present a stumbling block for a potential Biden EPA that might seek to rescind the ACE rule and promulgate new, more demanding carbon standards.

“I am unaware of any case where an agency created a more stringent rule and a court struck it down solely because it required regulated entities to do more than they had to do before,” said Michael Burger, executive director of the Sabin Center for Climate Change Law. “I mean, that makes no sense. If compliance with a weak rule meant an agency could not create a stronger rule, then rules would never be strengthened.”

The Trump EPA has frequently changed rules after regulated entities built plans around them. It has taken aim at a 2012 Clean Air Act rule for mercury and air toxins that the power sector has been in compliance with since 2016. And last September, EPA revoked a federal Clean Air Act waiver that allowed California and other states to implement stricter-than-federal fuel economy standards that had long figured in their state implementation plans for ozone.

Megan Ceronsky of the Center for Applied Environmental Law & Policy noted that if the appeals court rules in favor of the petitioners, EPA will have to go back to the drawing board to write a new rule for power plant carbon. States will need to tailor their compliance plans to that.

“The submission of state plans under those unlawful rules is irrelevant,” she said.