A group of states just won’t take no for an answer when it comes to suing the Environmental Protection Agency.
With the Obama administration’s final Clean Power Plan rule due out in a matter of weeks, a contingent of 14 states vehemently opposed to it are set on suing against the implementation of the proposed regulation. Just over a month after the Court of Appeals for the District of Columbia threw out a previous lawsuit challenging the Environmental Protection Agency’s proposed rule, West Virginia Attorney General Patrick Morrisey is leading the charge for another hearing; this time by the full, 17-judge D.C. Court of Appeals, rather than the three-judge panel that heard it in June.
The three-judge panel dismissed the lawsuit because the rule, which aims to reduce emissions from U.S. power plants by 30 percent from 2005 levels by 2030, isn’t finalized yet. So, the judge concluded, the states’ challenge was premature.
“They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule,” Judge Brett Kavanaugh wrote in the opinion. “But a proposed rule is just a proposal. In justiciable cases, this Court has authority to review the legality of final agency rules. We do not have authority to review proposed agency rules.”
In their renewed petition to the court, submitted on Friday, the states write that a rehearing by the full court of appeals is “warranted because the panel majority’s decision will have far-reaching consequences for the conduct of agencies in rulemaking.”
If the case does not get reheard, the states argue that the EPA will use this “powerful tool” to “make their policy goals a practical reality before the courts can review their legality.”
The states suing the EPA over the proposed Clean Power Plan are mostly Republican-led states, with many of them, including West Virginia and Kentucky, relying on fossil fuels to power their economies. The three judges that threw out the lawsuit in June were themselves staunchly conservative.
By rejecting the court’s prior decision that it was too early to rule against the EPA’s proposed rule, the states argue that preparing for the eventual rule is already causing them harm because it takes years to plan for power generation.
“The EPA is unlawfully coercing Oklahoma and other states into complying with the Clean Power Plan before the rule is even finalized,” said Oklahoma Attorney General Scott Pruitt in a statement Friday. “Waiting until the rule is finalized before a court can rule on its lawfulness will force states like Oklahoma into making policy decisions on power generation and distribution that will be irreversible.”
If states don’t come up with their own plans to comply with the greenhouse gas emissions reductions outlined in the rule, the EPA will be forced to step in and create plans for them. The EPA has put a large emphasis on the flexibility of the rule — each state can come up with its own strategy to cut carbon, one that aligns best with the local energy landscape as well as economic agendas. This could range from closing down more coal plants and adding natural gas, to expanding renewables like solar or wind and to scaling back energy demand.
A recent analysis by the Washington Post found that outrage in states opposed to the Clean Power Plan is fading, and that “despite dire warnings and harsh political rhetoric, many states are already on track to meet their targets, even before the EPA formally announces them, interviews and independent studies show.”
As the Washington Examiner reports, the states are also requesting that the court stay the ruling as an option for rehearing the case.
“If the court agrees to stay the case, they would wait until the Clean Power Plan is made final, and then issue a new decision, according to Morrissey,” reports the Examiner.
Once the final Clean Power Plan rule is issued, more lawsuits are expected — not only from states, but also possibly from the fossil fuel industry. Coal company Murray Energy Corp. also sued the EPA over the proposed carbon emissions rule, saying it would be “disastrous.” That suit was dismissed last month, along with the states’ suit.