Clean Power Plan Foes Urge ‘Pencils Down' After Stay

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By Andrew Childers

Feb. 12 — States should drop plans to comply with the Clean Power Plan and “put their pencils down” after the carbon dioxide standards were stayed by the U.S. Supreme Court, opponents leading the fight against the rule said in a letter to state regulators.

West Virginia Attorney General Patrick Morrisey and Texas Attorney General Ken Paxton told the National Association of Clean Air Agencies and the National Association of Regulatory Utility Commissioners in the Feb. 12 letter that states are under no obligations to continue their work on compliance measures for the Clean Power Plan, which would have been due to the EPA on Sept. 6, prior to the Supreme Court's unprecedented decision.

“If public officials in states wish to spend taxpayer money voluntarily to comply with the rule—even though it likely will never go into effect and even if upheld, will have extended deadlines—that is, of course, their decision,” the attorneys general said. “But there should be no mistake about that. The decisions by state officials to move ‘forward' in preparing for a stayed and likely-unlawful Power Plan are not required or compelled by the Power Plan or any of its presently-void deadlines.”

The letter comes after EPA Administrator Gina McCarthy told the state regulators Feb. 11 that the agency will continue to support any voluntary state efforts to prepare for eventual compliance with the Clean Power Plan (RIN 2060-AR33), which sets limits on carbon dioxide emissions from the power sector in each state (28 ECR, 2/11/16).

“The result of the stay is clear: the Power Plan has no legal effect whatsoever during the entire judicial review process,” the attorneys general said. “In granting the stay, the Supreme Court considered whether the Power Plan is likely unlawful and whether it is causing irreparable harm now. We believe the court's decision to grant the stay for the duration of the litigation—including any Supreme Court review—means that the states, their agencies and EPA should put their pencils down. Any taxpayers dollars spent during the judicial review process are unnecessary and likely to be entirely wasted.”

Foes Issue ‘Stop Work' Orders

The American Energy Alliance, the advocacy arm of the Institute for Energy Research, also urged states to halt their compliance efforts, sending a series of “Stop Work Orders” to governors and environmental regulators.

The Supreme Court Feb. 9 issued a 5-4 decision staying the Clean Power Plan until it can be fully litigated (West Virginia v. EPA, U.S., No. 15A773, order issued 2/9/16; 26 ECR, 2/9/16).

Some states such as Alabama have already halted their compliance efforts in the wake of the Supreme Court's decision while others like Colorado are moving ahead in the event the rule is ultimately upheld, fearing delays now would leave the state at a disadvantage later (27 ECR, 2/10/16).

However, Paxton and Morrisey argued those efforts are unnecessary now because even if the Clean Power Plan is upheld, the EPA would be forced to reset all of its compliance deadlines as a result of the stay.

“It is also well-understood that in the unlikely event that the Power Plan is ultimately upheld, EPA would be forced to completely reset all Power Plan deadlines,” the letter said.

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To contact the editor responsible for this story: Larry Pearl at