Several states say the Environmental Protection Agency’s continued work on implementing climate rules for power plants, despite a Supreme Court stay, is bordering on the edge of violating the law.
State attorneys general Patrick Morrisey of West Virginia and Ken Paxton of Texas, who are leading 30 states in a lawsuit opposing the Clean Power Plan, released a letter pressing the agency’s clean air chief to cease all action and follow the law. They sent the letter last week, but released it publicly on Monday.
“The entire point of the Supreme Court’s extraordinary action in putting a stop to the power plan was to preserve the status quo pending the outcome of the litigation,” the attorneys general write. “EPA should respect that action by leaving things the way they are until the courts have had their say.”
At that heart of their fear is the administration’s continued development of additional rules related to the Clean Power Plan in the wake of February’s stay.
The additional rules are meant to help states comply with the regulation after it is implemented. But the attorneys say that assumes too much. “Continued work on these programs during the stay calls into question your agency’s commitment to the Supreme Court’s stay order,” the letter reads.
The EPA recently sent its Clean Energy Incentive Program, or CEIP, to the White House for final review. The incentive program is meant to encourage states to develop more solar energy to comply with the Clean Power Plan. The agency is also developing carbon trading rules to help states develop multi-state compliance plans.
“Any effort to force states to take actions on the CEIP or the carbon trading rules — for example, by setting deadlines for state action while the stay is in place — would clearly violate the Supreme Court’s order,” the attorneys general add. “Indeed, we believe any actions that trigger deadlines for notice-and-comment or petitions for review would improperly compel action by states.”
Morrisey will be in Washington on Monday to discuss his outlook for litigation on the Clean Power Plan with reporters.
The D.C. Circuit Court of Appeals recently changed the date for oral arguments from June 2 to Sept. 27. The court did so to extend review of the states’ lawsuit, along with dozens of other groups also suing EPA, to all judges, not only the three that were originally slated to review the major legal case.
