States expect to challenge EPA CO2 rule in court

OREANDA-NEWS. Critics of the Environmental Protection Agency's (EPA) proposed regulations for power sector greenhouse gas emissions today said they intend to file legal challenges as soon as rules are finalized this summer.

The attorneys general of Oklahoma and West Virginia told the US Senate Environment and Public Works Committee they expect to head to court within the next few months.

"The finalized rule will raise a host of additional legal issues that we plan to bring to the" DC Circuit Court of Appeals, West Virginia attorney general Patrick Morrisey (R) said.

Morrisey is leading a group of 15 states in a separate lawsuit in the DC Circuit Court of Appeals that aims to prevent EPA from finalizing the regulations. But during oral arguments last year, two of the three judges hearing the case said they were hesitant to take the unprecedented step of preventing an agency from finalizing a regulatory proposal. Morrisey said he expects that coalition "will only grow" once EPA finalizes its Clean Power Plan proposal.

The regulations would require each state to meet a CO2 emissions rate target by 2030, with interim targets for 2020-29. The agency says it will finalize the standards this summer. Once it does, states would have 60 days to file lawsuits with the DC Circuit Court of Appeals.

Morrisey said he would likely argue that the Clean Air Act bars the regulations, proposed under section 111(d) of the law, because EPA already regulates power plant emissions of air toxics under section 112. Morrisey raised a similar argument in the case pending before the DC Circuit.

But there may be enough ambiguity in the Clean Air Act that the courts would, under longstanding legal precedent, defer to EPA to interpret how the two sections relate to each other, Georgetown University Law Center professor Lisa Heinzerling said.

Oklahoma attorney general Scott Pruitt (R) said his state viewed the EPA rule as a way for the agency to unlawfully determine the state's generation mix, without giving state regulators the ability to exercise their independent discretion on such decisions.

"State environmental agencies feel as though they are being pressured and intimidated to comply with a rule that perhaps is not consistent with statute," Pruitt said. "The regulation of energy generation is a police power of the state, and has historically been recognized as such by the Supreme Court."

Oklahoma governor Mary Fallin (R) recently ordered state regulators not to submit a compliance plan next year, as required by the EPA proposal.