Twelve States Sue Obama Administration Over Carbon Dioxide Regulations

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Michael Bastasch DCNF Managing Editor
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Twelve states have launched a lawsuit against pending Environmental Protection Agency regulations that would force states to limit carbon dioxide emissions from existing power plants.

The bipartisan coalition of states, led by West Virginia Attorney General Patrick Morrisey, is looking for a federal court to overturn a 2011 settlement by the EPA, states, cities and environmental groups, which gave the agency political cover to regulate carbon dioxide emissions from power plants.

“Our system doesn’t allow federal agencies to ‘improve’ or ‘fix’ laws to advance an agenda,” Oklahoma Attorney General Scott Pruitt, who joined Morrisey in the lawsuit, said in a statement. “But that is what happened here: the EPA made a promise in 2011 to expand its authority to regulate greenhouse gas emissions from existing power plants.”

“Fortunately, the law doesn’t allow the agency to do what it wants,” Pruitt added. “This lawsuit is about holding the EPA accountable to following the environmental statutes as passed by Congress. Oklahoma will continue to challenge the EPA – or any other federal agency – when it takes actions that undermine our system and the rule of law.”

In June, the EPA proposed rules that would force states to come up with plans to cut carbon dioxide emissions from power plants already in operation as part of President Obama’s Climate Action Plan. The EPA is looking to cut carbon dioxide emissions from power plants 30 percent by 2030.

Environmentalists cheered the announcement, saying it was necessary to protect public health and combat global warming. But a coalition of businesses, unions, utilities and others have argued that rule is legally dubious and would only serve to cripple the coal industry.

“EPA has to date failed to answer such questions, and provided little to no information regarding what authority it is relying upon to institute such an expansive regime, and how it intends to proceed if it does not approve of individual state implementation plans,” reads a letter from the industry coalition Partnership for a Better Energy Future to the EPA. “This is critical information that EPA should disclose in the interest of maximizing transparency and continued cooperation with states and stakeholders.”

Oklahoma Republican Sen. James Inhofe also expressed concerns about the EPA’s authority to enforce its new carbon dioxide rule. The EPA’s new rule essentially requires that states change their energy portfolios, shifting away from coal, to fuels that emit lower or no carbon dioxide emissions.

But the EPA can only prescribe air quality levels, not what types of fuels are used to reach such levels — a problem inherent in the agency’s pending carbon rule, warned Inhofe.

“What I’m trying to get to here: this rule would be a broad expansion of the authority the EPA has over states—that has broad political impacts and could dramatically reshape the entire sector of the economy,” Inhofe said while questioning EPA chief Gina McCarthy on how the EPA plans on enforcing its new rule.

McCarthy, however, said that the EPA’s carbon dioxide rule would not result in an expansion of agency authority over state and local economies.

“[Q]uestions have been raised about what we do with plans and what’s included and how that can be implemented, and we’re working through those issues with the states, but all the EPA is doing here is regulating pollution from sources that we regulate…” McCarthy told Inhofe.

But a separate analysis by Competitive Enterprise Institute senior fellow William Yeatman argues that the EPA’s rule would “constitute an unprecedented usurpation of power by the EPA from the states and fundamentally overhaul the electric industry.”

“In fact, Congress never approved such a gross expansion of the regulatory state and President Obama never vetted this power grab with voters. Most troubling of all, the rule was written by powerful special interests that helped get the president elected,” Yeatman writes. “Given these realities, the Obama administration’s Clean Power Plan is an illegitimate exercise in executive authority.”

For now, West Virginia and its eleven fellow states are looking to invalidate the 2011 agreement.

As part of the settlement, the EPA promised to expand its regulatory authority under the Clean Air Act to regulate carbon dioxide emissions from existing power plants despite the fact that the law prevents the EPA from doing so, say the twelve states.

West Virginia has been joined in its lawsuit by Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and Wyoming.

Update: A previous version of this story said the lawsuit against the EPA was led by Oklahoma, while the lawsuit is actually being led by West Virginia. The story has been corrected to reflect this.

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