EPA rules for new power plants draw states’ lawsuits

Source: Robin Bravender, E&E reporter • Posted: Wednesday, November 4, 2015

West Virginia and 22 other states challenged U.S. EPA rules for new power plants in court today, marking the latest attack in a multifront war against the agency’s climate change policies.

The coalition of 23 states submitted a petition asking a federal appeals court to strike down a new EPA rule that sets the first-ever carbon dioxide emission standards for new and modified power plants.

Many of the same states are simultaneously challenging the Obama administration’s related rule to slash carbon dioxide emissions from existing power plants, known as the Clean Power Plan.

The states challenging the rule for new and modified plants “will show that the final rule is in excess of the agency’s statutory authority and otherwise is arbitrary, capricious, an abuse of discretion and not in accordance with law,” they wrote in their petition to the U.S. Court of Appeals for the District of Columbia Circuit. “Accordingly, petitioners ask the court to hold unlawful and set aside the rule, and to order other such relief as may be appropriate.”

West Virginia filed the petition along with Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin, Wyoming, the Arizona Corporation Commission, the Louisiana Department of Environmental Quality and the North Carolina Department of Environmental Quality.

The EPA rule “effectively prohibits the construction of new, coal-fired power plants,” West Virginia Attorney General Patrick Morrisey’s office said today in a statement announcing the legal challenge. Morrisey, a Republican, said the rule relies on experimental technology that is expensive and unproven on a commercial scale in the United States.

EPA has said its new standards “are in line with current industry investment patterns” and are “not expected to have notable costs and are not projected to impact electricity prices or reliability.”

Several other groups are also challenging EPA’s standards for new power plants in the federal appeals court, including Murray Energy Corp. and the Energy & Environment Legal Institute. North Dakota separately asked the court to review the rule last month, bringing the total number of state challengers so far to 24.

A coalition of environmental and public health groups including the American Lung Association, the Center for Biological Diversity, the Clean Air Council, Clean Wisconsin, the Conservation Law Foundation, the Environmental Defense Fund, the Natural Resources Defense Council, the Ohio Environmental Council and the Sierra Club has asked to intervene in the case to support EPA (E&ENews PM, Oct. 27).

Two states that joined West Virginia’s challenge to EPA’s rule for existing power plants — Colorado and New Jersey — did not sign onto today’s petition seeking review of the EPA rule for new sources.

Roger Hudson, a spokesman for Colorado Attorney General Cynthia Coffman (R), said today, “Just because we signed onto that lawsuit doesn’t mean we sign onto all other lawsuits.” The state’s challenge to the Clean Power Plan, he said, “was really about the mechanism of the EPA overreaching into Colorado” and not about clean air or the environment. “It was just about who gets to decide,” he said.

Coffman’s involvement in the lawsuit challenging the Clean Power Plan has sparked a fight with the state’s Democratic governor, John Hickenlooper, who said his administration would seek a state court review of Coffman’s decision (E&E Daily, Oct. 27).

Media representatives for New Jersey acting Attorney General John Hoffman (R) did not respond to a request for comment in time for publication.