States press argument that comment period on EPA rule is ‘a sham’ 

Source: Jeremy P. Jacobs, E&E reporter • Posted: Tuesday, April 28, 2015

More than a dozen states Friday said recent remarks from U.S. EPA Administrator Gina McCarthy show the agency has already made up its mind about its proposed greenhouse gas standards for existing power plants and reiterated their call for a federal court to block EPA from promulgating the rules.

The states, led by West Virginia, are asking the U.S. Court of Appeals for the District of Columbia Circuit to issue an “extraordinary writ” prohibiting EPA from finalizing the rules this summer.

At oral arguments earlier this month, a three-judge panel was skeptical of the arguments made by states and the coal industry. In particular, the panel seemed reluctant to rule against EPA before it has had the opportunity to finalize its rule and justify its reasoning.

But at least two of the judges did express concern about whether EPA has already settled on the legal foundation of the rule — its interpretation of the relevant section of the Clean Air Act, 111(d).

Judge Thomas Griffith, for example, asked whether the agency was turning the ongoing public comment period into a “sham.” And Judge Karen Henderson questioned whether EPA has a “closed mind” on the issue (Greenwire, April 16).

In a letter to the D.C. Circuit, the state attorneys general sought to play on those concerns.

They highlighted McCarthy’s remark last Thursday on Twitter that the agency is “committed to reducing carbon pollution” with the Clean Power Plan, which would cut heat-trapping emissions by 30 percent from 2005 levels by 2030 and dramatically shift the country away from coal-based electricity.

Additionally, the states pointed to a video in which McCarthy said the regulations are on track to be finalized this summer, as well as a Greenwire article in which an EPA official discusses a “pretty slick” TurboTax-like program for states to submit their implementation plans (Greenwire, April 23).

“McCarthy’s unprecedented and audacious behavior,” the states wrote, “lays bare EPA’s goal: to ensure that States sink unrecoverable resources into preparing State Plans, while delaying judicial review for as long as possible under the cover of a sham comment period.”

EPA supporters point out that there is little that is unusual about McCarthy’s remarks — officials regularly comment on regulatory goals. And McCarthy did not make any specific remarks about the legal justification of the regulations.

Click here for the letter.