Fifteen States File Petition in Federal Court to Stay EPA’s Clean Power Plan

A group of fifteen state attorneys general filed a petition in federal court to stay the Environmental Protection Agency’s (“EPA”) recently unveiled Clean Power Plan, in the first of several expected legal challenges to the new regulation aimed at reducing greenhouse gas pollution. Attorneys general from Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, West Virginia, Wisconsin, and Wyoming urged the D.C. Circuit appellate court to block EPA from putting the plan into place, arguing that EPA lacks the legal authority to implement the plan. The states asked for a ruling by September 8, 2015, one year before they need to submit compliance plans to EPA.

The Obama administration announced the final version of the Clean Power Plan on August 3. It aims to lower emissions from the country’s power plants by 32% below 2005 levels by 2030. Under the regulation, each state needs to submit a plan to EPA detailing how it intends to meet the target the agency set for it. The states argue that unless EPA holds off before the legality of the plan is addressed, the states will be forced to spend a lot of time and money preparing to meet regulations that the attorneys general are certain will be found unlawful.

The filing comes a week after the states formally asked EPA to hold off making the Clean Power Plan official in an eight-page letter – officially an application for administrative stay – to EPA Administrator Gina McCarthy. EPA responded that it would only consider the request and has said that the Clean Power Plan will withstand legal challenges because it is based on a “sound legal and technical foundation.”

The emergency petition is a bit unusual because the 15 attorneys general have not yet filed suit against EPA on the legality issue. Typically, a suit would be filed first before a court is asked to issue an injunction. However, EPA has not yet published the rule in the Federal Register, at which point parties can begin to formally file lawsuits. If EPA formally publishes the Clean Power Plan in the Federal Register in September, as the state attorneys general believe it will, the rules will then become official. At that point, the states would have just one year to submit a final compliance plan or an initial submission with an extension request by September 2016. States seeking an extension would have until September 2018 to submit a final plan.

The attorneys general do not believe the federal agency can legally set carbon pollution limits for states or groups of states. They argue EPA can limit pollution from individual power plants under Section 111(d) of the Clean Air Act (“CAA”), but it does not have the right to order an entire state to limit emissions. EPA argues that the plan limits emission rates only from the power plants. While states retain the flexibility to use a variety of measures to achieve those rates, limits on individual sources are the foundation of the rule. EPA also believes that recent court decisions upholding EPA’s air rules show that the courts agree that the agency acts within the authority given to it by Congress in the CAA.

Attorneys general for several other states, including New York, California, Connecticut, Maine, Massachusetts, New Mexico, Oregon, Vermont, Washington, and the District of Columbia also believe the new power plant rules are “firmly grounded in the law,” which they expressed in a letter to McCarthy. These attorneys general defended the necessity of targeting fossil-fuel-fired power plants, calling them the single largest source of “climate-change pollution.” These states have indicated they are ready to help EPA defend against anticipated legal challenges to the new rules.