States Warn EPA Will ‘Circumvent Judicial Review’ To Implement Global Warming Rule

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Michael Bastasch DCNF Managing Editor
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A coalition of states, businesses and unions are asking the U.S. Supreme Court to block the implementation of Environmental Protection Agency (EPA) regulations limiting carbon dioxide emissions from power plants.

If the courts don’t block the massive EPA regulation, opponents argue, states could be saddled with billions of dollars a year in regulatory mandates complying with a potentially illegal regulation.

“Without Supreme Court intervention, West Virginia and other states will suffer irreparable harm as job creators and state agencies spend untold resources to comply with a rule that is likely to be struck down as illegal,” West Virginia Attorney General Patrick Morrisey, who’s leading a coalition of states against the EPA, said Tuesday after filing the court petition.

Morrisey uses a recent Supreme Court case as an example how the EPA took advantage of the slow legal system to force power plants to close or shut down.

“In short, EPA extracted ‘nearly $10 billion a year’ in compliance from power plants before this Court could even review the rule,” Morrisey wrote in his Supreme Court filing, “and then successfully used that unlawfully-mandated compliance to keep the rule in place even after this Court declared that the agency had violated the law.”

Morrisey’s plea to the high court comes after the D.C. Court of Appeals refused to put a stay on the Clean Power Plan Friday. Federal judges ruled the agency’s compliance deadline was far enough away that courts could decide on the rule’s legality before then.

Environmentalists cheered the decision, but Morrisey and his coalition vowed to bring their case to the Supreme Court.

Morrisey argues the EPA’s so-called Clean Power Plan would be an even bigger blow to state economies, especially coal-reliant states like West Virginia. He warns the EPA could push forward with the costly rule while its legailty is being debated in the courts.

“In the present case, EPA is seeking to similarly circumvent judicial review, but on an even larger scale and this time directly targeting the States,” Morrisey continued. “In sworn declarations submitted to the D.C. Circuit below, numerous state regulators describe the Plan as the most far reaching and burdensome rule EPA has ever forced onto the States.”

Last year, the Supreme Court ruled the EPA’s Mercury and Air Toxics Standards (MATS) regulation violated the Clean Air Act, and that the agency “unreasonably when it deemed cost irrelevant to the decision to regulate power plants.”

“No regulation is ‘appropriate’ if it does significantly more harm than good,” Justice Antonin Scalia wrote in the majority opinion in June 2015.

The ruling was cheered by Morrisey and others, but the EPA was quick to author a rebuttal to the court’s decision: it came too late.

Janet McCabe, the head of EPA’s air office, argued the many power plants had already complied with the rule, meaning it was going into effect whether it was on the books or not. This argument resonated with lower courts that later refused to vacate the rule, despite the Supreme Court’s ruling.

EPA’s MATS rule was one of the most expensive ever issued by the agency, at nearly $10 billion a year. The EPA’s Clean Power is estimated by the agency to cost around $8 billion, but coal industry estimates put the costs much higher –between $37 billion a year and $58 billion per year.

“Because the rule had not been stayed during the years of litigation, EPA assured its supporters that ‘the majority of power plants are already in compliance or well on their way to compliance,’ Morrisey wrote.

“Then, in reliance on EPA’s representation that most power plants had already fully complied, the D.C. Circuit responded to this Court’s remand by declining to vacate the rule that this Court had declared unlawful,” Morrisey added.

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