Gird for Clean Power Plan lawsuits, state AGs warn EPA
The group led by Oklahoma Attorney General Scott Pruitt (R) wrote that EPA’s proposal for power plants’ greenhouse gas emissions was an attempt to use the Clean Air Act’s Section 111(d) to circumvent Congress and the states.
“Congress did not hide the authority to impose a national energy policy in the ‘mousehole’ of this obscure, little-used provision of the Clean Air Act, which EPA has only invoked five times in 40 years,” they wrote.
In a statement accompanying the comments, Pruitt warned that Oklahoma and its partners “will always challenge the EPA, or any other federal agency, when it exceeds the statutory authority it is granted.”
The letter was also signed by attorneys general from Alabama, Florida, Georgia, Indiana, Kansas, Louisiana, Michigan, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, Utah, West Virginia and Wyoming.
Many are parties in a pre-emptive lawsuit filed in August, led by West Virginia’s Attorney General Patrick Morrisey (R) (Greenwire, Aug. 4) And many of their governors signed a letter to EPA in September raising the same points (E&E Daily, Sept. 10).
The AGs posted their warning as the clock winds down to the close of the public comment period at midnight Monday.
They cited “numerous legal defects” in the EPA draft, including many frequently raised by the agency’s foes.
For example, the AGs argue that EPA doesn’t have the authority to regulate greenhouse gas emissions under Section 111(d) because it is already regulating the same sources for mercury and air toxics under another section of the law. Opponents point to a legislative discrepancy in the 1990 Clean Air Act amendments to support their argument, but the agency has said that decades-old “glitch” has no bearing on its regulatory authority (Greenwire, Oct. 24, 2013).
The rule is also on shaky legal footing, the AGs wrote, because EPA’s proposal for new plants is “patently unlawful,” and therefore likely to be overthrown. The industry and its backers take a dim view of EPA’s proposed requirement that all future coal-fired units use carbon capture and storage to limit their carbon output.
The Clean Air Act bars EPA from regulating existing sources before a final rule is in place for new ones in the same category. EPA is on track to do that. It announced this week as part of its fall regulatory agenda that a new-power-plants rule will be final in January, one year after the proposal was published in the Federal Register.
But if it was invalidated by the courts — or rescinded by the agency — EPA would be prevented from finalizing an existing-source standard until the new one was replaced.
The AGs also said EPA was overstepping its authority by proposing a rule that would require changes in power dispatch.
“Rather than limiting itself to EPA’s narrow mandate of air pollution control, the proposed rule forces states to abandon their sovereign rights in favor of a national energy consumption policy,” they wrote.
EPA went beyond the law’s limits, they say, when the agency set carbon-intensity standards for states and didn’t restrict itself to emissions reductions that could be achieved on site at power plants.