16 States Think The EPA’s Emissions Rule Isn’t Legal And They Shouldn’t Have To Comply

WV Attorney General Patrick Morrisey is leading the charge against the EPA’s efforts to regulate carbon emissions. CREDIT: AP PHOTO/LISA MARIE PANE, FILE
WV Attorney General Patrick Morrisey is leading the charge against the EPA’s efforts to regulate carbon emissions. CREDIT: AP PHOTO/LISA MARIE PANE, FILE

The Clean Power Plan hasn’t been out a week yet, and 16 states have already formally requested that the Environmental Protection Agency (EPA) delay the rule.

The states, led by West Virginia, filed a letter with the department Wednesday asking for an “administrative stay” of the rule that requires all states to cut carbon emissions from stationary power plants. The finalized EPA rule calls for state-submitted plans by September 2018 (with an extension) and reductions beginning by 2022.

The rule gave states two extra years to submit their plans and to begin cutting emissions, over initially proposed timelines. If implemented on schedule, the rule will result in a 30 percent decrease in carbon emissions from the electricity sector, which currently accounts for roughly a third of emissions in the United States.

Wednesday’s letter to EPA Administrator Gina McCarthy argues that the plan is not legal and that “absent an immediate stay, the [plan] will coerce the states to expend enormous public resources and to put aside sovereign priorities to prepare state plans of unprecedented scope and complexity.” The letter requests a response by Friday.


The EPA intentionally left broad flexibility in the implementation plans, which means the states must come up with their own ways of reducing carbon, but are allowed to use their discretion in how best to manage it — including a carbon tax, investments in renewable energy sources, and multi-state trading systems. In 2009, the EPA issued an endangerment finding for greenhouse gases, which has led to this regulation under the Clean Air Act.

But while the fight to solve the climate crisis is a race against time, opponents to the CPP have identified various tactics to obstruct and slow the rule that would fatally delay it — and could make timely U.S. action on climate nearly impossible.

The letter is the first shot in what is expected to be a long salvo by states, industry, and congressional allies against the rule.

“This request is a necessary first step and prerequisite to confronting this illegal power grab by the Obama administration and EPA,” West Virginia Attorney General Patrick Morrisey said in a statement. “These regulations, if allowed to proceed, will do serious harm to West Virginia and the U.S. economy, and that is why we are taking quick action to bring this process to a halt.”

West Virginia was joined by Alabama, Arizona, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin, and Wyoming. Many of these states receive more than 90 percent of their electricity from coal, the most carbon-intensive source of electricity generation.


All but one of these states — Arizona — also joined an earlier lawsuit that sought to invalidate the Clean Power Plan before it was even finalized. A D.C. Circuit Court found in favor of the EPA, but when the final rule is entered into the Federal Register, the states will be able to pursue legal action again.

An EPA spokesperson told The Hill that the rule is legal and falls within the agency’s discretion.

“These final guidelines are consistent with the law and align with the approach that Congress and EPA have always taken to regulate emissions from this and all other industrial sectors — setting source-level, source-category-wide standards that sources can meet through a variety of technologies and measures,” Melissa Harrison said.

The CPP has been touted as the most aggressive action against climate change the United States has taken, and it comes at a critical time, just months before the United Nations Climate Change Conference in Paris in December. Scientists are increasingly saying that the world is nearing irreversible and catastrophic global warming. Reducing carbon emissions from power plants is a critical early step in helping the United States meet its overall goals — and could encourage other countries to act, as well.

Many states have reportedly already begun the planning process to begin to meet the goals of the plan.