Oklahoma will seek a rehearing of its regional haze case against the Environmental Protection Agency (EPA) before the full 10th Circuit Court of Appeals, state Attorney General Scott Pruitt confirmed on Wednesday.
On July 19, a divided three-judge panel threw out the state’s claims that the EPA had “impermissibly rejected” a State Implementation Plan (SIP) to limit emissions of sulfur dioxide before the agency replaced it with a more stringent federal implementation plan (FIP). “We conclude that the EPA has authority to review the state’s plan and that it lawfully exercised that authority in rejecting it and promulgating its own,” Chief Judge Mary Beck Briscoe wrote for the court’s majority.
Pruitt—on behalf of the state, Oklahoma’s largest generator, Oklahoma Gas & Electric (OG&E), and Oklahoma Industrial Energy Consumers—had petitioned the Denver appellate court in April 2012 to stay a final regional haze rule promulgated in December 2011 by the EPA under the Clean Air Act. The state has argued that its SIP accomplishes regional haze requirements by 2026—decades before the deadline—but that the EPA-promulgated FIP would increase utility rates for Oklahomans by 13% to 20% over three years.
The 10th Circuit in June 2012 granted a request by Oklahoma for a stay on the final rule, but the court panel’s 2–1 decision in July lifted that stay order. Oklahoma has until Sept. 3 to file a request for the en banc rehearing.
In a statement on Wednesday, Pruitt said the state “strongly” disagrees with the judges’ decision and the basis for their findings. “As [Judge Paul Kelly Jr.] said in his dissenting opinion, the EPA misrepresented the facts, made assumptions and provided no factual support for its conclusions,” General Pruitt said. “Regional Haze is about aesthetics, not health, and states have a say in how the regulations are implemented. Part of that role is considering the cost to our consumers.”
Sources: POWERnews, Oklahoma Attorney General