Attorneys general from 25 states filed a federal lawsuit Thursday challenging the Environmental Protection Agency’s emissions rule for coal- and gas-fired power plants, which they argue ignores previous court rulings, would force plant closures, and exceeds the agency’s authority under federal law.
The 25 petitioners, led by West Virginia Attorney General Patrick Morrisey and Indiana Attorney General Todd Rokita, asked the U.S. Court of Appeals for D.C. to declare unlawful and vacate the EPA’s stringent new rule for fossil fuel power plants — which requires existing coal- and gas-fired plants to either capture smokestack emissions or shut down.
The EPA’s rule marked the first time the federal government has restricted CO2 emissions from existing power plants, and would force coal- or gas-fired power plants to control up to 90% of their carbon pollution — authority that petitioners argue the EPA does not have.
In the lawsuit Thursday, state attorneys general argued the EPA’s rule is overly broad, an “abuse of discretion,” and out of accordance with law. They also noted that Congress has not yet granted EPA the statutory authority to remake electricity grids — meaning the agency cannot sidestep Congress to upend their energy portfolios and shutter existing fossil fuel power plants.
The states also argued the EPA rulemaking defies the 2022 Supreme Court decision in West Virginia v. EPA, in which the court warned EPA that it should not use a narrow regulatory provision to “force coal-fired power plants into retirement en masse.”
“The EPA continues to not fully understand the direction from the Supreme Court — unelected bureaucrats continue their pursuit to legislate rather than rely on elected members of Congress for guidance,” Morrisey said in a statement.
“This green new deal agenda the Biden administration continues to force onto the people is setting up the plants to fail and therefore shutter, altering the nation’s already stretched grid,” he added.
The EPA’s final Clean Air Act rule, slated to take effect beginning in 2032, requires all coal-fired plants and new baseload gas-fired plants operating past 2039 to control 90% of their carbon pollution — which department officials estimate will cut down on 1.38 billion metric tons of carbon pollution through 2047, or the equivalent of the annual emissions of 328 million gas-fired cars.
EPA officials also expanded the definition of so-called baseload gas plants to apply to all new gas-fired plants that operate more than 40% of the time.
But industry groups and Republicans have said the rule does not provide enough compliance time for power plants to appropriately meet demand while scaling back on their pollution.
“EPA’s power plant rule is unlawful, unreasonable and unachievable. It exceeds EPA’s authority and poses an immediate threat to the American electric grid,” Jim Matheson, the head of the National Rural Electric Cooperative Association, said in a statement. “Under the rule, EPA illegally attempts to transform the U.S. energy economy by forcing a shift in electricity generation to the agency’s favored sources.”
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West Virginia and Indiana were joined by Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming in the lawsuit.
Morrisey, the West Virginia attorney general, said he plans to file a motion to stay the “onerous” new rule as soon as possible.
