By Jeannine Anderson, News Editor, American Public Power Association
From the January 28, 2016 issue of Public Power Daily; Originally published January 27, 2016
Reprinted with permission

Twenty-five states on Jan. 26 asked the U.S. Supreme Court to stay the Environmental Protection Agency’s final rule under Section 111(d) of the Clean Air Act —  the Clean Power Plan — to regulate carbon dioxide emissions from electric generating units.

The states, led by the attorneys general of Texas and West Virginia, filed their application for a stay of the EPA rule five days after a U.S. appeals court denied motions by states and industry groups, including the American Public Power Association, that sought to put implementation of the EPA rule on hold until litigation over it could work its way through the courts.

On Jan. 21, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit declined to issue a stay of the EPA’s Section 111(d) rule. The ruling by the D.C. Circuit means that states must comply with the rule’s Sept. 6, 2016, deadline to submit initial state plans. The appeals court put the case on an expedited timeline, with oral argument scheduled for June 2, 2016.

‘Decision on the merits is at least half a year away’

“That means that a decision on the merits is at least half a year away, and likely more,” and possible rehearing proceedings could take many additional months, the 25 states said in their Jan. 26 application to the Supreme Court asking for a stay.

“An immediate stay from this Court is necessary to prevent the irreversible changes and harms that will continue to occur during the D.C. Circuit proceedings, which could stretch well into 2017,” the states told the high court.

West Virginia Attorney General Patrick Morrisey said in a Jan. 26 statement that “without Supreme Court intervention, West Virginia and other states will suffer irreparable harm as job creators and state agencies spend untold resources to comply with a rule that is likely to be struck down as illegal.”

“The Obama Administration has exceeded its authority in imposing a plan that will kill jobs and significantly raise electric bills for all Americans,” said Texas Attorney General Ken Paxton in a Jan. 26 statement. “This power grab will force a massive reordering of nearly every state’s electric grid and result in less-reliable service for all customers.”

The states’ application for stay argues that a majority of the Supreme Court justices would be likely to side with the states in finding the Clean Power Plan illegal.

25 states are joined by 4 state agencies

In addition to West Virginia and Texas, the other states asking the Supreme Court for a stay 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. They were joined by four state agencies: the Mississippi Department of Environmental Quality, the Mississippi Public Service Commission, the North Carolina Department of Environmental Quality and, the Oklahoma Department of Environmental Quality.

Should the Supreme Court grant the Jan. 26 request for a stay, earlier lawsuits filed with the D.C. Circuit would continue to move forward first in that court before any appeal to the high court.

The EPA’s final Clean Power Plan rule was published in the Federal Register in October, clearing the way for parties to file legal action challenging it.

On Oct. 23, APPA and the Utility Air Regulatory Group filed a petition with the D.C. Circuit asking it to review the rule. Separately, APPA, UARG, and several other parties asked the court to stay the final rule.

Learn more about how utilities are trying to prepare for their state’s compliance with the Clean Power Plan in the latest issue of Public Power magazine.