States ask Supreme Court to block Clean Power Plan

By Erin Voegele | January 27, 2016

On Jan. 26, a group of 29 states, led by Texas and West Virginia, asked the U.S. Supreme Court to block implementation of the U.S. EPA’s Clean Power Plan until a legal challenge filed in a lower appeals court is resolved.

The U.S. Court of Appeals for the District of Columbia denied a similar request for a stay on Jan. 21. The appeals court is scheduled to hear oral arguments on the matter June 2.

In a statement, West Virginia Attorney General Patrick Morrisey said a final ruling from The D.C. Circuit court could take at least six months, possibly stretching into 2017. A stay would freeze implementation of the Clean Power Plan until the pending litigation is resolved.

“While we know a stay request to the Supreme Court isn't typical at this stage of the proceedings, we must pursue this option to mitigate further damage from this rule,” Morrisey said. “Real people are hurting in West Virginia and it’s my job to fight for them.”

Those joining West Virginia and Texas seeking a stay from the Supreme Court are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin and Wyoming, along with the Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality and Oklahoma Department of Environmental Quality.

The states seeking the stay argue that the Clean Power Plan rule exceeds EPA’s authority by double regulating coal-fired power plants and forcing states to fundamentally shift their energy portfolios away from coal-fired generation, among other reasons.

Within the petition filed with the Supreme Court, the states call the Clean Power Plan a “power grab” and allege that the rule invades states’ “traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, land use, ratemaking, and the like.”

“If the court does not enter a stay, the plan will continue to unlawfully impose massive and irreparable harms upon the sovereign states, as well as irreversible changes in the energy markets,” said the states in the petition.

The EPA published the final rule for the Clean Power Plan in the Federal Register in October. Since then, more than two dozen states and a variety of industry groups and businesses have filed challenges against the program.

In November, Janet McCabe, U.S. EPA acting assistant administrator for the Office of Air and Radiation, published a blog that addresses the potential role of biomass in the Clean Power Plan, and announced that the EPA will hold a workshop on the topic early this year. That event has not yet been scheduled.

In December, the American Forest & Paper Association and American Wood Council filed a joint petition for review with the D.C. Circuit Court of the EPA’s treatment of biomass under the Clean Power Plan.