EPA Rules for New and Existing Coal-Fired Power Plants: Litigation and Rulemaking Documents

The Office of the West Virginia Attorney General continues to lead the fight against EPA's rules regulating carbon dioxide emissions from new and existing coal-fired power plants.  As these rulemakings have made clear, EPA is attempting to shut down existing coal-fired power plants and to stop new plants from being built.  These rules will cause West Virginia coal miners to lose their jobs and West Virginians’ electricity bills to skyrocket.  EPA’s actions will upset the careful balance of ensuring reliable, affordable electricity while encouraging job growth and responsible protection of the environment.  Because EPA's actions are destructive to West Virginia, the Office of Attorney General is taking every reasonably necessary action to stop them.

Legal Actions Against EPA

The State of West Virginia is involved in a number of lawsuits challenging EPA's proposed and final rules regulating new and existing coal-fired power plants.  The Office of Attorney General makes available here the significant filings in those actions for public access.  Documents filed by the Office of the Attorney General are included in the full docket pages, and certain highlighted documents are available on this page.

State of West Virginia, et al. v. EPA, U.S. Court of Appeals for the D.C. Circuit, No. 16-1264 (Click Here for Full Docket)

On August 2, 2016, the State of West Virginia, along with the States of Alabama, Arizona, Kansas, Louisiana, Montana, Ohio, Oklahoma, South Carolina, Wisconsin, and the Commonwealth of Kentucky, and Attorney General Bill Schuette for the People of Michigan, the Commonwealth of Kentucky Energy and Environment Cabinet, and the State of North Carolina Department of Environmental Quality, filed a Petition for Review in the U.S. Court of Appeals in Washington, D.C., challenging EPA’s Clean Air Act Section 111(b) rule that regulates new oil and gas source category operations.

State of West Virginia, et al. v. EPA, U.S. Supreme Court, No. 15A773 (Click Here for Full Docket)
On January 26, 2016, the State of West Virginia, along with the States of Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, and the Commonwealth of Kentucky, the Arizona Corporation Commission, the State of Mississippi Department of Environmental Quality, the State of Mississippi Public Service Commission, the State of North Carolina Department of Environmental Quality, Attorney General Bill Schuette on behalf of the People of Michigan, and the State of Oklahoma Department of Environmental Quality filed an application to stay the Clean Power Plan with the United States Supreme Court, directed to Chief Justice John G. Roberts, Jr. as Circuit Justice for the D.C. Circuit.
State of West Virginia, et al. v. EPA, U.S. Court of Appeals for the D.C. Circuit, No. 15-1399 (Click Here for Full Docket)

On November 3, 2015, the State of West Virginia, along with the States of Texas, Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Ohio, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, and the Commonwealth of Kentucky, the Arizona Corporation Commission, the State of Louisiana Department of Environmental Quality, the State of North Carolina Department of Environmental Quality, and Attorney General Bill Schuette on behalf of the People of Michigan, filed a Petition for Review in the U.S. Court of Appeals in Washington, D.C., challenging EPA’s Section 111(b) Rule—also called the “NSPS”—which regulates new coal-fired power plants.

State of West Virginia, et al. v. EPA, U.S. Court of Appeals for the D.C. Circuit, No. 15-1363 (Click Here for Full Docket)

On October 23, 2015, the State of West Virginia, along with the States of Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, New Jersey, Ohio, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, and the Commonwealth of Kentucky, the Arizona Corporation Commission, the State of Louisiana Department of Environmental Quality, the State of North Carolina Department of Environmental Quality, and Attorney General Bill Schuette on behalf of the People of Michigan, filed a Petition for Review in the U.S. Court of Appeals in Washington, D.C., challenging EPA’s Section 111(d) Rule—the so-called “Clean Power Plan”—which was published in the Federal Register on October 23, 2015.  The State Petitioners also filed a motion for stay and expedited consideration the same day

State of West Virginia, et al. v. EPA, U.S. Court of Appeals for the D.C. Circuit, No. 15-1277(Click Here for Full Docket)

On August 13, 2015, the State of West Virginia, along with the States of Alabama, Arkansas, Florida, Indiana, Kansas, the Commonwealth of Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, Wisconsin, and Wyoming filed an emergency petition for extraordinary relief in the U.S. Court of Appeals in Washington, D.C., seeking a stay of the Final Section 111(d) Rule of the EPA, which was finalized on August 3, 2015.

State of West Virginia, et al. v. U.S. Environmental Protection Agency, U.S. Court of Appeals for the D.C. Circuit, No. 14-1146 (Click Here for Full Docket)

On August 1, 2014, the State of West Virginia, along with Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and Wyoming filed a petition asking the U.S. Court of Appeals in Washington, D.C, to declare illegal a settlement agreement in which EPA promised to issue its now-pending rule concerning existing coal-fired power plants. Entered into in 2011, the settlement agreement committed EPA to regulate carbon dioxide emissions from existing coal-fired power plants under Section 111(d) of the Clean Air Act. The lawsuit contends that the agreement is illegal because coal-fired power plants already are regulated under a separate section of the Clean Air Act and the law expressly prohibits the double regulation of such plants.

Murray Energy Corporation v. U.S. Environmental Protection Agency, U.S. Court of Appeals for the D.C. Circuit, No. 14-1112 and No. 14-1151 (Click Here for Full Docket)

On June 18, 2014, Ohio-based coal company Murray Energy Corporation filed a petition for an extraordinary writ in the U.S. Court of Appeals in Washington, D.C., challenging the EPA's authority to regulate carbon dioxide emissions from existing coal-fired power plants under Section 111(d) of the Clean Air Act. Coal-fired power plants already are regulated under a separate section of the Clean Air Act, and the law expressly prohibits the double regulation of such plants.  On August 15, 2014, Murray Energy Corporation filed a petition for review in the U.S. Court of Appeals in Washington, D.C., challenging the EPA’s authority to regulate carbon dioxide emissions from existing coal-fired power plants under Section 111(d) of the Clean Air Act. In an order on November 13, 2014, these cases were consolidated.

Michigan, et al v. EPA, U.S. Supreme Court, No. 14-46 (Click Here for Full Docket)

In 2013, the State of Michigan led 23 States — including West Virginia — in filing a lawsuit in the U.S. Court of Appeals for the D.C. Circuit to challenge EPA's rule related to Section 112 of the Clean Air Act. Promulgated on February 16, 2012, the rule has been called one of the most expensive in history, and even EPA admits that it will cost $9.6 billion per year once fully implemented. The case addresses whether EPA acted unlawfully by refusing to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by the power plants.  On June 29, 2015, the U.S. Supreme Court agreed with West Virginia’s position, criticizing EPA’s decision to ignore the costs of imposing its Section 112 regulation on power plants.

EPA Rulemakings

The State of West Virginia was directly involved in the rulemakings for existing coal-fired power plants and new coal-fired power plants. The Office provides here the proposed and final rules and supporting documents for public access. Documents filed by the Office of the Attorney General are highlighted, and supporting documentation for those filings is included.

Proposed And Final Rule for Regulating Carbon Dioxide Emissions from Existing Coal-Fired Power Plants (Click Here for Full Docket)

On June 18, 2014, EPA published in the Federal Register a proposed rule that would require states to regulate carbon dioxide emission guidelines from existing fossil fuel-fired power plants. The final rule was signed by the EPA Administrator on August 3, 2015.

Proposed And Final Rule for Regulating Carbon Dioxide Emissions from New Coal-Fired Power Plants(Click Here for Full Docket)

On April 13, 2012, EPA published in the Federal Register a proposed rule that would regulate emission of carbon dioxide for new fossil fuel-fired power plants. The Agency received more than 2.5 million comments on the proposed rule, and after considering information in those comments withdrew the rule. After further review, EPA published in the Federal Register on January 8, 2014 a new proposed rule that proposes an updated regulation of new coal-fired power plants, which requires those plants to adopt technologies that are not commercially feasible.  The final rule was signed by the EPA Administrator on August 3, 2015.

Proposed Rule for Federal Plan Requirements Under Section 111(d)(Click Here for Full Docket)

On August 3, 2015, the EPA Administrator signed a proposed Federal Plan to implement the final rule for regulating carbon dioxide emissions from existing coal-fired power plants on those States that do not submit a state plan that EPA approves.  A 90-day public comment period begins after the date of publication in the Federal Register.

Proposed Rule for the Clean Energy Initiative Program Design Details Under Section 111(d) (Click Here for Full Docket)

On June 30, 2016, the Federal Register published EPA’s proposed Clean Energy Initiative Program Design Details (the “CEIP”). The CEIP is a program that States have the option to adopt if they wish to incentivize certain early emission reduction projects under the Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units (also known as the Clean Power Plan).

 

EPA Settlement FOIA Request (Click Here for Request and Responsive Documents)

On January 23, 2015, the State of West Virginia, along with Kansas, Kentucky, Louisiana, Nebraska, Oklahoma, South Carolina, and Wyoming, filed a formal request under the federal Freedom of Information Act asking EPA to release copies of records regarding EPA’s 2011 settlement agreement with several environmental groups.  The settlement agreement committed EPA to regulating carbon dioxide emissions under Section 111 of the Clean Air Act and was the subject of the legal challenge, State of West Virginia, et al. v. EPA, No. 14-1146 (D.C. Cir.).

EPA Clean Power Plan Publication FOIA Request (Click Here for Request and Responsive Documents)

On October 6, 2015, the State of West Virginia, led a 14-State bipartisan coalition, including the States of Arizona, Arkansas, Colorado, Florida, Georgia, Louisiana, Nebraska, North Dakota, Oklahoma, South Carolina, Texas, Wisconsin, and the Commonwealth of Kentucky, in filing a formal request under the federal Freedom of Information Act asking EPA to release copies of records regarding the publication of the Section 111(d) Rule (also called the Clean Power Plan) in the Federal Register.  The EPA Administrator signed the Rule as final on August 3, 2015, but it has yet to be published in the Federal Register.  However, States are not permitted to file a petition for review against EPA under the Clean Air Act until the rule is published.  As a result, States must wait until the publication process is complete before asking a court to stop EPA’s unlawful actions.  States are now experiencing significant and irreversible harm attempting to comply with EPA’s demands because the now-final Rule forces certain deadlines for plan submissions by the States regardless of the date of publication

Miscellaneous Letters

Last updated: August 17, 2016

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