States square off over lawsuit to block EPA carbon rule

Source: By Nathanael Massey, E&E reporter • Posted: Friday, November 14, 2014

Months before U.S. EPA’s proposed rule on power-sector carbon emissions becomes final, battle lines are already hardening between states that support the rule and those that would see it quashed.

This week, attorneys general in 14 states and the District of Columbia filed an amicus curiae brief with the D.C. Court of Appeals in support of EPA’s authority to regulate carbon, asking the court to throw out an earlier lawsuit by Murray Energy Inc. and nine states that sought to block the rule.

Murray Energy’s lawsuit, which argues that a pollutant cannot be regulated under multiple sections of the Clean Air Act, “is both improperly before this court and meritless,” the states write. “The writ must be denied.”

A final rule is expected next summer, at which point Murray Energy and any other petitioner will be free to seek judicial review, the brief notes. The company argued in its original filing that the cost of preparing for the rule necessitated early intervention by the courts, but as legal experts have previously noted, the courts have historically proved unreceptive to such arguments in cases of EPA rulemaking.

EPA sounded a similar note in late October, when it filed its own motion to dismiss. “Because the agency publication challenged by Murray is only a proposed rule reflecting proposed legal interpretations and technical analysis, by definition it does not represent EPA’s final determination with respect to the matters addressed,” the agency noted at the time.

Whatever the fate of Murray’s lawsuit, it is likely that the argument it raises — based on one of two competing amendments to the Clean Air Act, which states that polluters cannot be regulated under multiple sections of the act — will figure prominently in court challenges once a final rule has been released.

Most coal states come together

States still are considering the proposed rule, and EPA’s comment period will not be closed until Dec. 1. But the early court action around the Clean Power Plan does give some indication of which states will come out in support of a final rule and which will stand against it.

The states backing Murray’s suit — West Virginia, Wyoming, South Carolina, Ohio, Nebraska, Oklahoma, Alaska, Alabama and Kentucky — are largely governed by Republicans and represent some of the country’s biggest coal-producing regions.

Those that signed onto this week’s amicus brief — New York, California, Delaware, Maine, Connecticut, Maryland, Massachusetts, Oregon, New Hampshire, Rhode Island, Vermont, New Mexico and Washington, along with the District of Columbia — tend toward Democratic governance and have a history of backing EPA’s carbon-regulating authority.

In fact, with the subtraction of Maryland and New Hampshire, it was the same group of progressive states that successfully sued EPA in 2010 to set a timetable for plans to regulate carbon under the Clean Air Act, a case that laid the groundwork for the current proposed rule.

The case also highlights the potential for divisions within states. While New Mexico’s attorney general, Gary King (D), backed EPA in the brief, the state’s governor, Susana Martinez (R), was a signatory to a letter in August criticizing the rule and asking for more clarity from the federal agency. The two politicians ran against each other for the governor’s seat in last week’s midterm, with Martinez emerging victorious.

While the governor “is obviously free to take a different political position from the state’s legal position, New Mexico has been on the record since 2010 that EPA needs to promulgate rules for existing power sources,” said Tannis Fox, assistant attorney general for the state. Joining in the amicus brief was in keeping with that commitment, she said.