States Begin New Legal Attack Against The Clean Power Plan

On August 5, sixteen states requested that the U.S. Environmental Protection Agency stay the final Clean Power Plan rule. Led by West Virginia Attorney General Patrick Morrisey, the group of states want the rules to be placed on hold until their lawsuits, challenging the legality of the EPA using Section 111(d) of the Clean Air to regulate carbon dioxide emissions from power plants, are settled. The states that joined in the request are: Alabama, Arizona, Arkansas, Indiana, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, Wisconsin, Wyoming, and Kentucky.

The EPA will surely ignore the states’ request resulting in the parties to then file the request in court. According to a July report from the Natural Resources Defense Council, parties requesting a stay must demonstrate that:

1. the litigant is likely to succeed on the merits;
2. absent a stay, the litigant will suffer irreparable harm in the time it takes to decide the case on a normal schedule;
3. a stay would not substantially injure other parties to the case; and
4. a stay would service the public interest.

The NRDC report further states:

It will be particularly difficult for opponents of the Clean Power Plan to show irreparable injury in the roughly one-year time frame necessary to decide the case on a normal schedule… States are unlikely to succeed by claiming that writing a state plan is an irreparable harm, especially because they have the right to refuse to write a plan and to leave it to EPA to regulate power plants directly.

While the states’ legal strategy of requesting a stay proceeds, which will perhaps take several months, another development is likely to occur when the Clean Power Plan is published in the Federal Register. Hal Quinn, president of the National Mining Association, told E&E TV that a legal challenge will be filed at the time of publication. “We will file our legal challenge to the rule, and we expect many states to join in filing their legal challenges,” said Quinn.

The National Mining Association is a trade association with utility members such as Luminant and PacifiCorp Energy, and coal companies such as Alpha Natural Resources, Arch Coal, CONSOL Energy, Murray Energy, and Peabody Energy.