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Fifteen States Ask Federal Court to Postpone Clean Power Plan Deadlines

Fifteen states -- led by West Virginia and including several oil and gas heavyweights -- have filed an emergency petition in federal court, urging it to postpone the deadlines set forth earlier this month by the Obama administration's Clean Power Plan (CPP).

On Thursday, attorneys general for the 15 states filed an emergency petition for an extraordinary writ in U.S. Court of Appeals for the District of Columbia Circuit. They argue that the U.S. Environmental Protection Agency (EPA) had exceeded its authority, and had given the states insufficient time -- 13 months -- to design and submit to EPA plans showing how they would replace coal-fired generation with cleaner alternatives, including natural gas.

The Obama administration unveiled the final version of the CPP earlier this month (see Daily GPIAug. 3). The plan -- which embraces renewables, solar and wind power, but not so much natural gas -- calls for states to reduce emissions by 32% below 2005 levels by 2030. States will be required to submit a final plan to reduce their emissions by September 2016, but may request a two-year extension.

"Even including the two-year extension, EPA's schedule will be difficult to meet," the attorneys general said in their filing. "Some states believe that three years may be insufficient to complete all of these steps. At a minimum, the states must begin working immediately, if they have any hope of meeting the initial 2016 deadline, and the final 2018 deadline."

The states also argue that the Clean Air Act (CAA), after it was amended in 1990, prohibits the EPA from regulating hazardous air pollutants (HAP) at national standards under more than one section of the law. Specifically, the plaintiffs said Congress expanded Section 112 of the CAA to include source categories for HAP, but said EPA could not also regulate source categories under Section 111(d), a rarely-used part of the law where EPA was granted the authority to require states to invoke HAP standards.

"EPA seeks to save the [final rule for the CAA] by adopting an interpretation of the phrase 'regulated under [Section 112]' that the agency never suggested before litigation in this court this year," the attorneys general said. "Specifically, the agency concludes that the exclusion 'only exclud[es] the regulation of HAP emissions under CAA Section 111(d) and only when th[e] source category [at issue] is regulated under CAA Section 112.' That is because, in EPA's new view, 'the phrase [regulated under Section 112] refers only to the regulation of HAP emissions.'

"This contrived reading -- invented by EPA after two decades of reading the text 'literally' -- is indefensible."

Attorneys general for 14 states -- Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, Wisconsin and Wyoming -- joined West Virginia in filing the emergency petition.

Under the CPP, states must develop and implement plans that ensure power plants in their state -- either as single plants or as a collective group -- achieve goals for reducing carbon dioxide (CO2) emissions between 2022 and 2029, and final CO2 emission performance rates by 2030.

The CPP gives states the option of choosing between either an emissions standards plan or a state measures plan to reduce emissions. They would also have the option of trading emissions rate credits with other states.

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