Legal & Regulatory

Okla. Asks Supreme Court to Review EPA Regional Haze Suit

Oklahoma has asked the U.S. Supreme Court to review a lawsuit that challenges the Environmental Protection Agency’s (EPA’s) authority to reject a state regional haze plan and replace it with a federal implementation plan (FIP).

Last July, in a 2–1 decision, the U.S. Court of Appeals for the 10th Circuit upheld the EPA’s rejection of Oklahoma’s state implementation plan (SIP) to address regional haze, saying that while the legislative history of the regional haze program shows that Congress intended to prevent the EPA from directly determining the best available retrofit technology (BART), it “does not necessarily evidence an intent to deprive the EPA of any authority to ensure that these BART decisions comply with the statute.”

Separately, the issue has also been taken up by the Eighth Circuit. That federal court in September upheld the EPA’s authority to reject North Dakota’s SIP, though it remanded the EPA’s own FIP for its failure to consider a certain coal-drying technology unique to a specified facility. Arizona is also legally contending the EPA’s imposition of a FIP in lieu of its SIP to curb regional haze.

Oklahoma utility officials claim that the EPA’s FIP would cost about $2 billion to implement and increase rates for Oklahomans consumers by as much as 20% annually.

“This issue is simple: the Clean Air Act gives states the primary authority to design and implement plans to address visibility issues in federal wildlife areas,” said Attorney General Scott Pruitt in a statement on Wednesday. “We are hopeful the Supreme Court will agree to review our lawsuit so that we can continue the fight to protect the ability of states like Oklahoma to craft state-based solutions as provided by the law.”


Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)

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