On Thursday, 15 states struck the most recent legal attack on the Environmental Protection Agency’s plan to regulate carbon emissions from existing fossil fuel-fired electric generating plants by asking an appellant court to stop the rule’s implementation pending court review.
The EPA rule, released August 3, 2015, but not yet published in the Federal Register, obligates all but three states and D.C. to submit plans to meet state-specific carbon emission reduction goals by September 6, 2016. EPA excluded D.C. because it does not have any electric generating units that would be affected by the rule.
States can obtain a two-year delay for submission of their final plans under certain conditions.
The Clean Power Plan requires carbon emission reductions of 32 percent below 2005 levels by 2030. Unlike the proposed rule, which set a 10-year interim period to obtain emission reductions beginning in 2020, the final rule provides a more flexible eight-year transition period, which begins in 2022.
Preparation of required implementation plans by states will be burdensome and should await legal challenges of the rule, the 15 states said in their petition filed with the U.S. Court of Appeals for the D.C. Circuit.
The petition was filed by Attorneys General from the states of West Virginia, Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, Wisconsin and Wyoming.
Typically, a stay of a federal rule would not be sought until after the rule is published in the Federal Register. But the state petitioners claim awaiting Federal Register publication of the rule will force them to spend time and money to meet the state plan requirement.
“If we were to wait on the EPA to get this rule published, it could be well into 2016 before the States complete arguments and receive a ruling on a request to stay this rule,” West Virginia Attorney General Patrick Morrisey said in a statement.
“We want to ensure that no more taxpayer money or resources are wastefully spent in an attempt to comply with this unlawful rule that we believe will ultimately be thrown out in court,” Morrisey said.
But some legal experts think the stay request has little chance of success.
“[T]he D.C. Circuit reviews rules when they become final — that is, with their publication in the Federal Register,” Craig N. Oren, a Rutgers School of Law environmental law professor, said by e-mail.
“[N]o great harm is going to occur to the states by waiting until publication — the states have no obligation until then,” professor Oren said.
Thursday’s stay request is not the first legal challenge to EPA’s Clean Power Plan.
Last year, a coal company and a coalition of 12 states sought review of EPA’s proposed Clean Power Plan. The D.C. Circuit denied the two petitions on June 9, 2015.
On August 5, 2015, two days after the EPA released the final rule, 16 states asked the EPA for an administrative stay. That request remains pending.