West Virginia and a number of other states are sifting through emails obtained from the Environmental Protection Agency in a bid to strengthen their arguments against the agency’s aggressive emission rules for power plants.
The state’s attorney general’s office made the email strategy clear in a brief filed late last week with the D.C. Circuit Court of Appeals, where it and a dozen other states are suing the agency to squash the EPA’s Clean Power Plan.
The Clean Power Plan directs each state to reduce its greenhouse gas emissions in an attempt to clean up the country’s fleet of existing power plants.
Most scientists say the emissions EPA wants to regulate are the primary cause of manmade climate change. The rules are also the centerpiece of President Obama’s agenda to combat global warming.
The states suing the agency argue that the plan oversteps EPA’s authority and violates the Clean Air Act.
West Virginia also argues that the emission rules were based on an illegal settlement agreement secured in 2011 between the EPA and environmental organizations. Under that agreement, the agency said it would move forward with regulations that would become the Clean Power Plan.
But “the agreement is illegal because coal-fired power plants already are regulated under a separate section of the Clean Air Act and the law expressly prohibits the double regulation of such plants,” according to the West Virginia attorney general’s office.
The EPA says that argument is unfounded, and that the settlement agreement is moot given the length of time that expired since the settlement was made final.
The states, however, filed Freedom of Information Act petitions in an attempt to gain access to key EPA emails that they hope will demonstrate to D.C. Circuit Court judges that the settlement agreement is not a moot point and should be considered by the court.
Oral arguments in the case were held April 16, but West Virginia and the states are combing through a batch of emails they gained access to from the FOIA request.
A May 21 brief filed by West Virginia and the states details what they have found so far. In a 2012 email labeled Exhibit A, the states demonstrate that a senior official with the Natural Resources Defense Council, a party to the settlement, asked if comments the EPA was making to reporters at the time signaled that it was backing away from the settlement.
In the email, David Doniger, NRDC’s director and senior attorney, “asked EPA to respond to a comment by EPA, which had apparently implied that EPA had ‘no plans’ for regulating existing sources under Section 111(d),” otherwise known as the Clean Power Plan, according to the brief.
“Doniger expressed [concern] that the comment is ‘[b]eing taken as a repudiation of the settlement.’ Accordingly, Doniger asked: ‘Can you please clarify that you are not walking away from the settlement?'” the brief reads.
The states say the email “is significant” for two reasons. “First, the email further refutes EPA’s argument that the settlement is moot because ‘the deadlines in the settlement agreement have long since passed.'”
“Doniger sent the email March 27, 2012, nearly six months after the deadline for EPA to propose the Section 111(d) rule under the settlement,” the states argue.
Furthermore, had the council “believed that the settlement became moot as soon as the EPA failed to abide by the settlement’s timeframes, the email would have been nonsensical,” the states argue. This, they say, demonstrates that the states’ arguments that the EPA’s breach of the settlement with the NRDC and others “did not void EPA’s other settlement obligations” – “a sentiment that Doniger obviously shared.”
Secondly, the states argue the email also demonstrates that “it was entirely uncertain” whether the EPA had decided to “walk away” from enacting a rule for existing power plants under the settlement.
The states also note that Doniger sent the email a month after the agency finalized separate regulations for power plants under section 112 of the air law. Those rules, governing hazardous air pollutants emitted from existing power plants, would make the Clean Power Plan “illegal,” the states argue.
Under the air law, if rules for existing plants are implemented under section 112, they cannot be implemented again under section 111(d). Nevertheless, the EPA has argued that the law is not entirely clear on that point, and it believes it has discretion to act as it sees fit.
Doniger refused to comment on the brief.
