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EPA's clean-power initiative under renewed attack by states

October 23, 2015

President Barack Obama’s 15-year plan to cut power plant carbon dioxide emissions and steer the U.S. toward renewable energy sources is under legal attack. Again.

The Environmental Protection Agency regulatory package known as the Clean Power Plan officially became U.S. law Friday. It was immediately challenged by 24 states in a U.S. appeals court filing that was led by West Virginia and included Indiana. Oklahoma sued separately.

The plan is “one of the most onerous and illegal regulations coming out of Washington, D.C., that we’ve seen in a long time,” West Virginia Attorney General Patrick Morrisey said in a telephone press conference after the multistate petition was filed. He said a request will soon follow for a court order blocking the measure until the lawsuit is resolved.

Murray Energy Corp., a St. Clairsville, Ohio-based coal producer issued a statement saying it too will challenge the measure, calling the Clean Power Plan “a political power grab of America’s power grid.”

It’s at least the third time the initiative has come under legal fire. Earlier challenges were rejected by federal judges as premature because the measure hadn’t been published. The U.S. government no longer has that defense, leaving the regulations open to attack.

Announced by Obama and the EPA on Aug. 3, the Clean Power Plan is one of several conservation measures unveiled by the administration only to face immediate legal opposition.

A federal appeals court in Cincinnati put on hold the president’s plan to expand environmental protection of U.S. streams and wetlands after 18 states sued. An effort to regulate hydraulic fracturing, or fracking, was blocked by a federal judge in Casper, Wyoming. The U.S. Interior Department’s Bureau of Land Management lacked congressional authorization to impose those rules, the judge said.

The first-ever national standards for addressing power plant carbon pollution, the Clean Power Plan aims by 2030 to reduce those emissions by 32 percent below where they were in 2005. The rules require states and utilities to use less coal and more solar power, wind power and natural gas.

States are required to submit their initial plans for meeting those objectives by Sept. 6 of next year. Final plans must be submitted two years later.

The government has touted the initiative as “fair, flexible and designed to strengthen the fast-growing trend toward cleaner and lower-polluting American energy.” Opponents have attacked it as an abuse of federal power that violates existing law and threatens the reliability of the power grid.

EPA Administrator Gina McCarthy, in a statement issued Friday marking the official publication of the Clean Power Plan, said it is based upon “strong scientific and legal foundations” and is within the authority granted to the agency under the Clean Air Act.

West Virginia and the other states expressly disagreed in the filing, calling the measure “in excess of the agency’s statutory authority,” arbitrary, capricious and unconstitutional.

Other states joining in the West Virginia case include Texas, Arizona, Colorado, Florida, New Jersey, Michigan, Wisconsin, Wyoming, Missouri and Kentucky.

“This is the most far-reaching energy regulation in the nation’s history,” West Virginia’s Morrisey said in August, when he led a 15-state effort to put those earliest deadlines on hold. The federal appeals court in Washington turned back that effort last month. The same court in June rejected earlier challenges by West Virginia and Murray Energy.

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