Oklahoma Requests Full Court Review of EPA Regional Haze Case
The state of Oklahoma and Oklahoma Gas and Electric (OG&E) on Tuesday asked the full 10-judge panel at the 10th Circuit Court of Appeals to review their challenge to the Environmental Protection Agency’s (EPA’s) implementation of a regional haze rule to limit emissions from power plants in the state.
The move follows a decision by a divided three-judge panel of the federal court in July, which rejected claims that the EPA usurped the state’s authority when it rejected a State Implementation Plan (SIP) to limit emissions of sulfur dioxide (SO2) and replaced it with its own more stringent federal implementation plan (FIP). The FIP imposes stricter SO2 limits on six Oklahoma emission sources, including three coal-fired plants: two owned by OG&E and one by American Electric Power (AEP).
The SIP, submitted by the state to the EPA in 2010, could meet regional haze requirements under the Clean Air Act by 2026, Oklahoma has argued. Instead of scrubbers, the Oklahoma plan calls for use of low sulfur coal and gives affected utilities the flexibility of burning less coal and more natural gas on a timetable that achieves the goals of the regional haze rule.
“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,” wrote Chief Judge Mary Beck Briscoe in the court’s July decision. In a dissenting opinion, however, Judge Paul Kelly Jr. concluded that the “EPA rejected Oklahoma’s evidentiary support with no clear evidence of its own to support its contrary conclusion.”
On Tuesday, Oklahoma Attorney General Scott Pruitt said the rehearing before the full court would give the state “an opportunity” to continue the fight to preserve the state’s authority to address regional haze. “Regional haze is about improving visibility, not about health. The Clean Air Act clearly gives states a primary role in implementing regulations to address regional haze. Oklahoma leaders crafted a commonsense plan to meet the goals of the Clean Air Act without imposing unnecessary rate hikes on Oklahomans. The EPA was wrong to ignore the Oklahoma plan and impose a federal plan,” he said.
Meanwhile, OG&E on Tuesday underscored the importance of the case, saying it is “among the first decisions in the country to address EPA’s review under the Clean Air Act’s regional haze provisions.”
OG&E spokesperson Brian Alford said the three-member panel opinion failed to require the EPA to show why the state’s rule was unreasonable before the agency could reject the state’s implementation plan. “In addition, OG&E believes that EPA’s analyses were frequently based on assumptions unsupported by the record, contrary to basic engineering or economic realities, or based on materials or analysis that EPA did not provide to Oklahoma during the State’s lengthy process for making its [best available retrofit technology] determination,” he said.
Sources: POWER, Oklahoma Attorney General Scott Pruitt, OG&E
—Sonal Patel, Associate Editor (@POWERmagazine, @sonalcpatel)