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Fourteen States Take Aim at EPA's Clean Power Plan, Citing Lack of Publication in Federal Register

© Krantz News Service, October 8, 2015


Fourteen states have filed a Freedom of Information Act request asking why the EPA has not published its new Clean Power Plan regulations. The request occurred a month after a top EPA official wrote that publication would occur "expeditiously."

President Obama and the EPA announced the Clean Power Plan for Existing Power Plants on August 3, but the final rule has not yet appeared in the Federal Register.

"As a result, the States are now experiencing significant and irreparable harms attempting to comply with the Rule," West Virginia Attorney General Patrick Morrisey wrote in a letter released Tuesday, "because the Rule imposes specific dates certain deadlines for the submission of State Plans by the States -- September 6, 2016, and September 6, 2018."

"These compliance deadlines have been set by EPA irrespective of the date of publication. Since a Petition For Review challenging the final rule cannot occur until publication, States must wait until publication finally occurs before seeking judicial review."

The letter was signed by Morrisey on and attorneys general from 13 other states: Arizona, Arkansas, Colorado, Florida, Georgia, Kentucky, Louisiana, Nebraska, North Dakota, Oklahoma, South Carolina, Texas, and Wisconsin.

In an August 7 letter to Elbert Lin, the solicitor general of West Virginia, EPA General Counsel Avi Garbow wrote that the EPA "is currently moving expeditiously to have the final rule published in the Federal Register."

Quoting from the letter to Lin, Morrisey wrote that Grabow had stated in a conference call on August 6 that the EPA has "no control" over the Federal Register process; in addition, Morrisey continued, the EPA later admitted the rule would likely be published in "late October."

The administration's Clean Power Plan is a major component of President Obama's overall climate change program and is intended to reduce carbon emissions. In announcing the plan on August 3, the President stated that "no challenge poses a greater threat to our future, and future generations, than a changing climate, and that's what brings us here today."

State reaction to the Clean Power Plan has varied; some states are fully supportive and others have collaborated on strategies of legal action. Meanwhile, the United Nations Conference on Climate Change is scheduled for Paris later this fall.

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