Cart Before the Horse: States Sue EPA Over Draft Clean Power Plan

This blog was co-authored by SACE legal intern, Roy Sparks.

In June 2014, the Environmental Protection Agency (EPA) issued proposed rules under section 111(d) of the Clean Air Act as part of its coordinated effort to fight climate change.  Now, Attorneys General from twelve coal dependent states have filed suit against the EPA regarding the Clean Power Plan (the name EPA has given it’s proposed 111d rules).  Despite the fact that the rule is still in draft form, these states filed suit in the U.S. Court of Appeals for the District of Columbia on August 1st.  This filing is from a coalition of states and follows a similar lawsuit brought six weeks ago by the country’s largest privately held coal mining company, Murray Energy Corp.  These suits make it clear that the coal industry and its political allies aren’t wasting any time in trying to block this important public health regulation.

The states involved are Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Dakota, South Carolina, West Virginia and Wyoming. They claim EPA is prohibited from using 111(d) to regulate carbon emissions from existing coal-fired plants because EPA already regulates air emissions from coal-fired plants under a separate section of the Clean Air Act (section 112, which regulates hazardous air pollutants).

The proposed rule establishes carbon emissions standards for each state and allows states to develop their own unique compliance plans that will meet EPA’s standards.  Ultimately, states have control of their own generation resources in deciding how to reduce carbon emissions.  For more information on the Clean Power Plan and what it means for the Southeast, you can read SACE’s previous blog post.

The states suing assert these claims irrespective of the fact that the Clean Power Plan is still in draft form and EPA hasn’t actually begun regulating carbon emissions from existing coal plants. This creative argument (or desperate argument, depending on perspective) challenges EPA’s authority per se but relies on an obscure interpretation of an interpretation over non-final agency action under the Clean Air Act. The motivation behind this preemptive challenge appears purely political, since any lawsuit brought after the rules are finalized would necessarily render this legal challenge irrelevant.

The Murray Energy lawsuit as well as the states’ litigation rest in part upon “apparent drafting errors” associated with the 1990 CAA Amendments to 111(d). 25 years ago the Senate and the House had different interpretations of how power plants and pollutants could be regulated under the Act.  Curiously, instead of reconciling the differences and reaching a compromise reached before the final vote, both interpretations were written into the statute.

In a legal memo released alongside the draft Clean Power Plan, EPA anticipates litigation on this precise issue and explains its authority to regulate existing coal fired plants under 111(d). EPA reiterates that an agency implementing its own regulations is typically given deference by the courts when regulatory ambiguity arises. The EPA is expected to seek dismissal of the lawsuit, and D.C. insiders are not anticipating the suit to survive long in the D.C. Circuit Court, given the agency’s aforementioned position and the premature timing of the suit.

The real take away here is that the suit brought by the coalition of state Attorneys General, as well as the previous suit brought by Murray Oil, are just the beginning of what could be a protracted legal battle to come – which would further delay action on reducing dangerous global warming emissions.  The coal industry and its political allies will very likely continue their efforts to challenge EPA’s authority under 111(d) and we will continue to bring you updates as this issue continues.

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