WASHINGTON – Twelve states, including coal-rich Kentucky, Wyoming and West Virginia, have filed a federal lawsuit to roll back a proposed Environmental Protection Agency regulation regarding carbon emissions at existing power plants.
In a petition filed with the U.S. Third Circuit Court of Appeals in Washington, D.C., the states maintain that the changes likely to be demanded by the agency will force them to “undertake burdensome measures in the coming months to meet the demands of the unlawful rule.”
“We will use many different tactics to fight this rule,” said Wyoming Gov. Matt Mead, whose state is the nation’s largest coal producer. “It is an overreach and is harmful to the economy of the entire country and in particular to Wyoming. We need affordable energy and a clean environment. We can have both, but this is not how we get there. This rule goes too far.”
The EPA, for the first time, is seeking to reduce carbon emissions from coal-fired power plants in an effort to address global warming and concerns about the nation’s health. The proposed new rules create a national framework to set state-specific goals to cut carbon pollution per megawatt hour of electricity generated and authorizes the states to determine how to best meet those goals. The EPA is in the midst of a 120-day comment period to collect feedback on the package.
Coal-fired power plants are the largest carbon producers in the U.S., accounting for about one-third of all greenhouse gas emissions.
EPA Administrator Gina McCarthy recently told a Senate committee that the rule, if implemented, will cut hundreds of millions of tons of carbon pollution and hundreds of thousands of tons of other harmful air pollutants. By 2030, the proposal is expected to result in about 30 percent less carbon pollution from the power sector across the U.S. when compared with 2005 levels, removing 730 million metric tons of carbon dioxide from the air.
In the first year alone, the EPA predicts the regulation will result in 100,000 fewer asthma attacks and 2,100 fewer heart attacks. By 2030, the regulations will result in climate and health benefits resulting in a savings of up to $90 billion.
But the states filing suit maintain the EPA is engaged in a massive and illegal overreach. The suit claims the EPA is basing its proposed rule on a misinterpretation of the plain language of the Clean Air Act.
According to the suit, legal precedent and the Clean Air Act establish that the agency can’t impose new regulations under the section of the Clean Air Act it cites since it already is regulating the power plants under a different section.
The suit cites a 2011 U.S. Supreme Court opinion that maintains, “EPA may not employ [Section 111(d)] if existing stationary sources of the pollutant in question are regulated under…the ‘hazardous air pollutants’ program.”
In early 2013, the EPA finalized their Mercury and Air Toxics Standards, which regulate coal plants under Section 112 of the act. Even though the act prohibits additional regulation under Section 111(d), according to the suit, the EPA published its proposed rule to regulate carbon emissions from coal plants under Section 111(d). That action violates the Clean Air Act, according to the 12 states, as well as court precedent. Wyoming and the other states are asking the court to halt EPA’s action.
“When Congress wrote this language, they did it knowing that coal plants should not be regulated twice,” Mead said. “Shutting down coal-fired power plants hurts the economy. We are aggressively opposing this proposal. I want the rule withdrawn or amended to encourage innovation rather than stifling an industry.”
Gov. Steve Beshear of Kentucky, the nation’s third largest coal producer, said he believes the proposed rule “would decimate Kentucky’s economy.” He expressed concern that the proposal “does not provide adequate flexibility or attainable goals.”
Beshear added that President Obama’s desire “to protect our climate is one that I share, but that desire must be attained while also providing economic security to our families and businesses.”
Joining Kentucky, West Virginia and Wyoming in the lawsuit are Alabama, Indiana, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Dakota and South Carolina. Murray Energy Corp., of St. Clairsville, Ohio, the nation’s largest privately held coal mining company, already has sought to waylay the rule.
The EPA is expected to ask the appeals court to dismiss the suit.
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