The test may not be over, but it’s time to put your pencils down, West Virginia Attorney General Patrick Morrisey (R) wants states to know. The AG is at the head of a lawsuit against the Clean Power Plan, the Environmental Protection Agency’s carbon emissions standards for existing coal-fired power plants. The rule itself has been stayed by the Supreme Court, halting its implementation until it has been deemed legal. Much to Morrisey’s chagrin, some states are still working on compliance during the stay. “I want to emphasize that a stay is a stay, and people should put their pencils down,” Morrisey said Monday during a Newsmakers event at the National Press Club.
Under the rule, states are required to develop action plans to meet federally set, state-specific, carbon emissions reduction goals. However, Morrisey and his group of 27 states, and numerous utilities, trade organizations and interest groups, argue that the rule is not legal and would result in a complete overhaul of the nation’s energy mix.
On the flip side, several states have backed up the EPA, saying that the rule is legal and ensures that states are held responsible for their climate change inducing pollution. These states, and even some states in Morrisey’s group, have continued work to develop action plans regardless of a stay granted by the Supreme Court in February that will at the very least push back the initial deadlines in the rule, the first of which would have hit in September of this year. It is the hope of the states continuing work that if the rule is upheld they will be ahead of the game and already prepared for compliance.
The EPA has also let states know that for those that decide to continue working their plans, the agency will provide guidance as allowed under the stay. This too should end, Morrisey said in a letter sent to EPA’s Acting Assistant Administrator for the Office of Air and Radiation dated May 16 but released Monday. “[T]hough we acknowledged that States may take voluntary steps to reduce emissions, we cautioned that EPA may not require States to take action in any way concerning the Power Plan. To do otherwise would plainly violate the Supreme Court’s order,” Morrisey, and co-author Texas Attorney General Ken Paxton (R) wrote.
The attorneys general argue that the EPA should also halt work on two non-final items related to the Clean Power Plan, the Clean Energy Incentive Program (CEIP) and the model carbon trading plan. “Any effort to force States to take actions on the CEIP or the carbon trading rules – for example, by setting deadlines for state action while the stay is in place- would clearly violate the Supreme Court’s order,” the letter says. “At a minimum, we urge you to consider that you are spending scarce resources on a rule that the Supreme Court has indicated raises serious legal questions.”
The suit is currently waiting for oral arguments at the U.S. Court of Appeals for the D.C. Circuit. In a surprise move last week – neither party had requested it – the court ordered that the case be heard by the full panel of judges. Oral arguments had been scheduled for June 2 in front of a three-judge panel. In ordering the “en banc” review, the court rescheduled arguments to Sept. 27 at which time they will be heard by a panel of nine judges.
Parties on both sides of the argument view the change as good news, saying that it will expedite the process. “We welcome the opportunity to get before nine members of the panel and make our best arguments. There was a very real chance that the case may have gone up to the full panel … even before this decision,” Morrisey said.