State Attorneys General Patrick Morrisey (W.Va.) and Ken Paxton (Texas) have launched a campaign to end state efforts to develop action plans to comply with the Environmental Protection Agency’s Clean Power Plan. The Supreme Court last week ordered a stay of the rule pending judicial review. However, several states, including Colorado, Virginia, Pennsylvania, Connecticut, and Delaware, have announced their intention to continue working toward compliance. Morrisey and Paxton’s states were part of a coalition of 26 states, 16 trade organizations, 61 power utilities, and others that requested the Supreme Court stay.
To comply with the rule states must develop action plans to meet federally set emissions reduction goals.
The attorneys general penned a letter Friday calling on the presidents of the National Association of Regulatory Utility Commissioners and the National Association of Clean Air Agencies to halt any work being conducted toward compliance. The agencies represented by these groups are the agencies that will be tasked with the development of plans.
“We believe the Court’s decision to grant the stay for the duration of the litigation—including any Supreme Court review—means that the States, their agencies, and EPA should put their pencils down. Any taxpayers dollars spent during the judicial review process are unnecessary and likely to be entirely wasted,” Morrisey and Paxton wrote.
Under the rule as finalized, states were to submit either a plan or a request for a two year extension in September 2016. States should not heed this deadline, the attorneys general wrote, because even if the rule is upheld, it is likely that all deadlines will have to be reset. “There is no reason to think that if the Power Plan survives judicial review, its deadlines would not likewise be amended to reflect at a minimum the period of time that the Rule was stayed,” the letter says.
Gov. Scott Walker (R-Wis.) answered the call of the AGs on Monday, issuing an executive order barring “any state agencies, departments, boards, commissions, or other state entities, or any of their agents, from developing or promoting the development of a state plan in response to the finalization of the 111 (d) Rule.” The order is in effect until the stay has expired, once all legal challenges and appeals have been decided, likely in mid-2017 or 2018.
Several states are moving forward with plan development, however, including the Commonwealth of Virginia, where a planning meeting was held just three days after the Feb. 9 stay order was published. “Although the Supreme Court has stayed the federal emissions guidelines on which the plan will be based, the guidelines have not been struck, so the group will continue to consider the pros and cons of elements of a potential plan, and determine what would be the best plan for Virginia,” the minutes of the meeting read.
Colorado will also move forward in planning. “It is prudent for Colorado to move forward during the litigation to ensure that the state is not left at a disadvantage if the courts uphold all or part of the Clean Power Plan,” according to a release from the Colorado Department of Public Health and Environment.
The EPA has stated that it is ready and willing to work with states that choose to develop plans on a voluntary basis, but has been clear that it is barred from any implementation activities.
