Legal Challenges to Clean Power Plan Begin to Take Shape

Attorneys general from three states—Oklahoma, Texas, and West Virginia—stepped forward on May 5 to present their objections to the Environmental Protection Agency’s (EPA’s) proposed Clean Power Plan.

During testimony before the Senate Environmental and Public Works Subcommittee on Clean Air and Nuclear Safety, West Virginia Attorney General Patrick Morrisey presented three specific problems he sees with the Section 111(d) Rule.

First, Morrisey suggested that the Section 112 Exclusion prohibits the Section 111(d) Rule from being implemented. In essence, the exclusion prohibits the EPA from double regulating a pollutant source. Morrisey believes emissions proposed for regulation under 111(d) are already regulated under Section 112.

Second, Morrisey said the rule is illegal because “it seeks to transform the states’ energy economies, rather than just regulating particular sources.” He implied that the rule requires states to replace coal-fired generation with other sources of energy, and even forces consumers to reduce demand for energy. Morrisey said Section 111(d) does not give the EPA that type of authority.

Third, the West Virginia attorney general said the rule illegally commandeers the states. Morrisey cited Harvard Law Professor Lawrence H. Tribe’s claim that the rule raises a number of constitutional concerns, including violation of the states’ 10th Amendment rights. Morrisey said the rule does not accord with the “congressional regime of cooperative federalism.”

Oklahoma Attorney General E. Scott Pruitt testified that “the EPA claims the proposal gives states flexibility to develop their own plans to meet the national goals of reducing carbon dioxide emissions. In reality, the Clean Power Plan is nothing more than an attempt by the EPA to expand federal bureaucrats’ authority over states’ energy power generation mixes.”

Although Texas Attorney General Ken Paxton did not testify at the hearing, he issued a statement on May 5 announcing the state’s intention to challenge the rule.

“The Obama Administration’s Carbon Rule would result in higher electricity costs and less reliability for Texans, all while doing little to nothing to affect the environment,” Paxton said. “Texas has proven we can improve air quality without damaging our economy or Texans’ pocketbooks. I will fight this ill-conceived effort that threatens the livelihood and quality of life of all Texans.”

—Aaron Larson, associate editor (@AaronL_Power, @POWERmagazine)