Twenty-Six States Appeal to Supreme Court To Stay EPA’s Greenhouse Gas Rule for New Power Plants

West Virginia Attorney General Patrick Morrisey and Texas Attorney General Ken Paxton on 26th January filed on behalf of twenty-six States an appeal of the DC Circuit Court’s refusal to grant an immediate stay of the EPA’s final greenhouse gas rule for new power plants. The U. S. Chamber, National Association of Manufacturers, American Fuel and Petrochemical Manufacturers, National Federation of Independent Business, and twelve other industry associations filed a similar appeal on 27th January. Murray Energy announced last week that they would also file an appeal.

The AGs’ 63-page petition makes an impressive case that the so-called “Clean Power” Plan is so legally flawed that it will eventually be overturned in court, but that so much economic damage will be done before the litigation is completed that the rule must be suspended as soon as possible.

The States’ petition begins by reminding the Justices what happened with the Utility Mercury Air Toxics Standards rule:

“This Court’s decision last Term in Michigan v. EPA starkly illustrates the need for a stay in this case.  The day after this Court ruled in Michigan that EPA had violated the Clean Air Act in enacting its rule regulating fossil fuel-fired power plants under Section 112 of the CAA, EPA boasted in an official blog post that the Court’s decision was effectively a nullity.  Because the rule had not been stayed during the years of litigation, EPA assured its supporters that ‘the majority of power plants are already in compliance or well on their way to compliance.’ … In short EPA extracted ‘nearly $10 billion a year’ in compliance before this Court could even review the rule, and then successfully used that unlawfully-mandated compliance to keep the rule in place even after this Court declared that the agency had violated the law.  In the present case, EPA is seeking to similarly circumvent judicial review, but on an even larger scale and this time directly targeting the States.”

In addition to West Virginia and Texas, the following States signed the petition: Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina (counsel for the Council on Environmental Quality rather than the AG), New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin, and Wyoming.

Chief Justice Roberts asked the EPA to respond to the petition by 4th February.  The federal Court of Appeals for the DC Circuit has scheduled oral arguments in the underlying case challenging the power plant rule for 2nd June.  Written briefs by the petitioners are due by 19th February, and by the respondents by 28th March.