State of West Virginia vs. EPA to be argued Thursday

CHARLESTON, W.Va. — The U.S. Court of Appeals in Washington, D.C. will hear arguments later this week on a case West Virginia is leading to challenge the federal Environmental Protection Agency’s proposed carbon emissions limits for existing coal-fired power plants.

Attorney General Patrick Morrisey

“It’s a very important case,” said Patrick Morrisey, state attorney general, on Monday’s MetroNews “Talkline.”

The case comes down to the legality of the Clean Power Act, the carbon emission limits proposed last June for power plants that are currently in operation.

Since the EPA regulates coal-fired power plants already under national standards, Morrisey argued the agency is prohibited from imposing new state-by-state regulations on the same plants using Section 111(d) of the Clean Air Act.

“We have a strong argument that you cannot breathe life into both a House and a Senate amendment that were included in the same bill,” Morrisey said. “Congress speaks with one voice, not with two voices, and we think that’s a very powerful argument that the courts should consider.”

EPA officials have said the goal of the Clean Power Act is to reduce carbon emissions from existing coal-fired power plants by a national average of 30 percent, compared with 2005 levels, before 2030.

If implemented, states would have different deadlines for meeting individualized emission-reduction targets.

Twelve other states joined West Virginia in the case including Alabama, Indiana, Kansas, Louisiana, Ohio, South Carolina and Wyoming. “This is a very serious concern that we have about the legality of the regulations and we’re looking forward to getting into court,” Morrisey said.

The proposed Clean Power Act will not be finalized until June 1 at the earliest.

In a separate case, Murray Energy is also suing to stop the rule before it takes effect with a similar argument — that it’s prohibited under the Clean Air Act. West Virginia was part of an amicus brief in support of that lawsuit as well.

Arguments for both cases in front of the U.S. Court of Appeals in Washington, D.C. are scheduled for Thursday beginning at 9:30 a.m. If the Court finds in favor of West Virginia, the EPA could be forced to abandon the proposed emissions limits.

The issue may eventually make it to the U.S. Supreme Court.

“I think we are right on the substance,” Morrisey said. “I don’t know when we will win this case. I do think eventually we have a high likelihood of winning – on the substance – as we go forward.”

As for possible legislative action, an energy and power subcommittee for the House Energy and Commerce Committee will hold a hearing on Capitol Hill Tuesday about the proposed Ratepayer Protection Act.

If approved, that bill would let a governor reject a Clean Power Act compliance plan if it leads to reductions in reliability or increases for electricity prices.





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