EPA coal plant emissions limits challenged by 12 states

A dozen states led by West Virginia sued the U.S. Environmental Protection Agency to block a proposed rule that would limit carbon dioxide emissions from coal-fired power plants.

The states said a U.S. Supreme Court ruling prohibits the EPA from issuing power-plant rules under one section of the Clean Air Act, known as 111(d), when it has already regulated them under a separate section. The agency previously used the act to regulate hazardous air pollutants in 2012, according to the filing.

The high court ruled in 2011 that the “EPA may not employ section 111(d) if existing stationary sources of the pollution in question are regulated under…the ‘hazardous air pollutants’ program,” the states said in their filing in federal court in Washington.

Regulation of mercury and other toxics in 2012 “does not deprive EPA of the authority to regulate CO2 emissions” under section 111(d), the EPA said in a memo accompanying the June rulemaking for carbon dioxide reduction.

Barring it from doing so would be inconsistent with Congress’s intent in 1990 Clean Air Act amendments requiring EPA to regulate more substances, the agency said.

“This is a laughable lawsuit,” said David Doniger, a lawyer at the Natural Resources Defense Council, which supports the EPA’s efforts. “I don’t think the courts will take more than 15 minutes to dismiss this.”

Doniger also said the challenge is premature because the proposal has yet to become a final rule.

Meeting agency standards for reducing carbon dioxide would lead to $90 billion in climate and health benefits and cost utilities as much as $8.8 billion, according to the EPA.

The proposed regulation would permit states to achieve the reductions in carbon pollution by promoting renewable energy, encouraging greater use of natural gas, employing energy efficiency technologies or joining carbon trading markets. The regulations apply to existing power producers.

Separate rules governing new plants have already been proposed.

Co-filers in the West Virginia case are Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Dakota, South Carolina and Wyoming.

The case is West Virginia v. EPA, 14-1146, U.S. Court of Appeals, District of Columbia (Washington).