NYC, D.C., states join fight against lawsuit to block EPA power plant rule

Source: Katherine Ling, E&E reporter • Posted: Wednesday, September 3, 2014

A coalition of states and cities today announced plans to fight a lawsuit aimed at killing U.S. EPA’s proposed greenhouse gas rule for existing power plants.

The city of New York, the District of Columbia and 11 states filed a motion to intervene in a lawsuit filed last month by “coal producing regions” that seek to invalidate a 2010 settlement agreement between EPA and state and environmental plaintiffs that set a path for the agency to propose emissions rules for new and existing power plants, according to the New York state attorney general’s office.

New York State Attorney General Eric Schneiderman filed the motion to intervene today in the U.S. Court of Appeals for the District of Columbia Circuit on behalf of California, Connecticut, Delaware, Maine, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, the District of Columbia and New York City.

Critics of EPA’s power plant proposal argue that the 2010 settlement with New York state, the Natural Resources Defense Council and other litigants should be invalidated because the Clean Air Act prohibits EPA from promulgating a rule for existing facilities under Section 111(d) of the act if it has already regulated the same sources under Section 112 — as in, mandating state-by-state standards for existing sources that are already subject to national standards — even if it is for a separate set of emissions. The ambiguity arises, EPA says in its proposed rule, from an unresolved discrepancy between the House and Senate versions of the Clean Air Act Amendments of 1990.

West Virginia’s Attorney General Patrick Morrisey filed the lawsuit to invalidate the settlement on Aug. 1 and was joined by the states of West Virginia, Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and Wyoming. A coalition of industry groups and states filed a similar lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit right after the rule was released in June (Greenwire, June 19).

Environmental groups are already downplaying the lawsuits on the grounds that the EPA rule is not scheduled to be finalized until June 2015 and the 60-day period where the settlement could have been challenged already expired in 2011 (Greenwire, Aug. 4).

The motion filed today “disputes the West Virginia claim that invalidating the 2010 agreement would block the ongoing EPA rulemaking and seeks, among other things, to ensure that the EPA encounters no further delays in finalizing the rules,” according to a statement from Schneiderman’s office.