States Come to EPA's Defense Over Carbon Standards

By Andrew Childers

Nov. 4 — Eighteen states, including New York and California, Nov. 4 joined the Environmental Protection Agency in its efforts to defend the Clean Power Plan in lawsuits brought by several other states and industry groups.

“This is a smart plan. This is the right plan. It reflects strategies we have seen and used here in our states that are working,” Massachusetts Attorney General Maura Healey told reporters.

The EPA's Clean Power Plan (RIN 2060-AR33) sets carbon dioxide emissions limits for the power sector in each state that will be implemented by state regulators.

Sixteen of the same states filed a similar motion with the U.S. Court of Appeals for the District of Columbia Circuit Nov. 4 to intervene on behalf of the EPA in challenges to its new source performance standards (RIN 2060-AQ91) for carbon dioxide emissions from new power plants as well (North Dakota v. EPA, D.C. Cir., No. 15-1381, motion to intervene 11/4/15).

The litigation over the two rules has embroiled nearly every state, with 26 already bringing challenges to the Clean Power Plan and another 24 states filing lawsuits against the new source performance standards. The rules also are being challenged by several industry groups as well as some unions.

The litigation has occasionally exposed rifts between state officials as some attorneys general and governors are split over whether to challenge or implement the EPA's rules.

Iowa Gov. Terry Branstad (R) has opposed the EPA's Clean Power Plan, but state Attorney General Tom Miller (D) is joining the fight to defend the rule.

Parties Have ‘Different Views.'

“That's happened on occasion in the last few years, which is not surprising,” Miller told reporters. “We're in different parties and have different views on the issues such as the relationship with the federal government.”

California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland,, Massachusetts, Minnesota, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington, along with the District of Columbia; Boulder, Colo.; New York City; Chicago; Philadelphia; South Miami and Broward County, Fla., joined the motion to intervene in the Clean Power Plan litigation.

Those same states, with the exception of Virginia and Minnesota, also have filed to defend the new source performance standards along with New York City and the District of Columbia.

Several environmental groups, including the American Lung Association, the Center for Biological Diversity, the Natural Resources Defense Council, the Sierra Club and the Environmental Defense Fund, have already filed motions to intervene on the EPA's behalf as well (207 ECR 207, 10/27/15).

EPA Authority Defended

Opponents of the Clean Power Plan are expected to argue the EPA has exceeded its Clean Air Act authority by imposing carbon dioxide emissions limits on the power sector in each state (200 ECR 200, 10/16/15).

But the attorneys general defending the rule said the requirements are a logical extension of the agency's regulatory power and fall in line with U.S. Supreme Court precedent.

“This is exactly what cooperative federalism looks like, and it's a hallmark of our national environmental laws,” Healey said.

New York Attorney General Eric Schneiderman (D) said the EPA's rule follows the Supreme Court's 8-0 decision that the agency's Clean Air Act authority to regulate carbon dioxide emissions displaced federal common law climate change lawsuits (Am. Electric Power v. Connecticut,, 131 S. Ct. 2527, 72 ERC 1609 (U.S. 2011) ).

In that decision, the Supreme Court had specifically highlighted the EPA's authority to regulate carbon dioxide emission under Section 111 of the Clean Air Act, as it has done for power plants.

Agency Responding to Supreme Court Ruling

“They are doing what the Supreme Court said they should do,” Schneiderman said. “EPA absolutely has the authority to issue a plan like this.”

States opposed to the Clean Power Plan, led by West Virginia, have sought to have the rule stayed during the litigation. Additional motions to stay the rule are due Nov. 5.

To contact the reporter on this story: Andrew Childers in Washington at achilders@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com