West Virginia’s attorney general is once again leading a coalition of states against the U.S. EPA’s carbon agenda — this time against the Clean Power Plan’s new power plant component, the New Source Performance Standards.
Attorney General Patrick Morrisey on Nov. 3 released an unofficial version of his petition for review of the EPA’s new source rule, which will be submitted to the U.S. Court of Appeals for the District of Columbia Circuit. While he provided few details of his challenge, Morrisey pledged to show that the rule exceeds the EPA’s statutory authority and is otherwise arbitrary and capricious. Those seeking to challenge an agency action must indicate their intent to do so within 60 days of a rule’s publication in the Federal Register, although they do not have to lay out their arguments in that filing.
The Clean Power Plan establishes statewide carbon dioxide emissions standards for existing fossil fuel-fired electric generating units, with the goal of cutting CO2emissions 32% as measured from a 2005 baseline by 2030. The new source rule sets similar emissions standards for new fossil-fired generation, but also includes a carbon capture and sequestration requirement for any new coal facilities that may be built in the future.
North Dakota was the first state to challenge the new source rule, and legal experts have predicted it could be the key to bringing down the Clean Power Plan. Under the relevant Clean Air Act provisions, the EPA must regulate new sources of emissions before it can regulate existing sources of emissions, and so a successful challenge of the new source rule could effectively halt the existing source rule.
Joining West Virginia in the challenge are attorneys general for the states of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri, Michigan, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin and Wyoming, as well as the Arizona Corporation Commission, the Louisiana Department of Environmental Quality, and the North Carolina Department of Environmental Quality.