West Virginia, Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and Wyoming.
These are the twelve states asking the D.C. Circuit Court of Appeals to effectively invalidate the Environmental Protection Agency’s recently-proposed regulations of carbon emissions from existing coal plants — regulations that represent the most significant thing America has ever done to combat climate change. The states are specifically challenging the legality of a 2011 settlement the U.S. government entered into with three environmental organization and another group of states, in which the EPA promised to regulate carbon.
“Without this court’s prompt intervention, petitioners will be forced to undertake burdensome measures in the coming months to meet the demands of the unlawful rule,” the petition reads.
The petition represents the second attempt by some of the states — all of which are either large producers or consumers of coal — to nullify the EPA’s rules through the court system. In July, nine of the thirteen states joined forces with coal company Murray Energy to sue the EPA, arguing it has no legal authority to limit carbon from coal plants. Murray Energy’s CEO says the EPA is “lying” about climate change’s existence and that the earth is actually cooling.
Both lawsuits essentially argue the same thing — that the EPA is not legally allowed to regulate coal facilities under the Clean Air Act. The states say that general air pollution from coal plants is already regulated under the Act, therefore greenhouse gas rules “impose impermissible double regulation.”
While it is true that coal plants are required to limit many air pollutants, they are not currently required to limit greenhouse gases. The states say this doesn’t matter — coal plants are already regulated and can’t be double-regulated.
“Such a rule [is] clearly unlawful,” the petition reads.
The Supreme Court has already affirmed numerous times that the EPA is allowed to regulate greenhouse gases under the Clean Air Act. In Massachusetts v. EPA in 2007, the high court ruled specifically that carbon dioxide and other heat-trapping emissions could be considered “air pollutants” under the Act, and that the U.S. government had authority to curb them. Just last month, the Supreme Court effectively affirmed 7 to 2 that the EPA has the authority to regulate greenhouse gases from stationary sources, like coal plants.
The twelve states also face an additional issue of so-called “ripeness,” that is, whether their lawsuit is timely. The proposed regulations are years away from being finalized, much less implemented, making it difficult to successfully allege in court that harm would be done. Still, the states say their suit is ripe because the EPA has already declared the rule’s legality.
The lawsuit is also being used to score political points, with Arkansas gubernatorial candidate Asa Hutchinson pledging on Monday to have his state join the coalition if he’s elected.
“I want to send a signal — nationally and in Arkansas — that this is a position I will take,” he said.
Regulating carbon emissions from coal plants will be the most significant thing America has ever done to combat climate change. The electricity sector is the largest source of greenhouse gas emissions here, and dropping those 25 percent in 6 years amounts to a reduction of roughly 300 million tons of CO2 each year.
While coal has traditionally been the largest source of electricity generation in the United States for more than 60 years, its dominance has already been rapidly declining without the help of these regulations. Coal’s annual share of total net generation declined from nearly 50 percent in 2007 to 39 percent in 2013, according to the U.S. Energy Information Administration.