Ohio Attorney General Mike DeWine and 14 other attorneys general organized by West Virginia Attorney General Patrick Morrisey have asked the U.S. EPA to hold off on putting President Obama's Clean Power Plan into action until the federal courts have ruled on its constitutionality.
CHARLESTON, W.V. -- Led by the West Virgina Attorney General's office, Ohio and 13 other states Wednesday asked the U.S. Environmental Protection Agency to back off putting President Obama's Clean Power Plan into effect.
The eight-page letter addressed to EPA Administrator Gina McCarthy -- officially an application for administrative stay -- asked that the agency tell the states by the end of business Friday whether it would be willing to hold off officially implementing the plan until federal courts have ruled on its constitutionality.
And if the EPA doesn't meet the 4 p.m. deadline?
The states "will seek emergency relief," in other words, a restraining order, launching what could be years of litigation with a particularly nasty start.
The application comes before the coalition has actually sued the administration. The group tried unsuccessfully to sue the EPA earlier, arguing that the as-of-then-unannounced regulation would not be constitutional.
The D.C. Court of Appeals decided the suit was premature and declined to rule.
The coalition cannot sue until the EPA files the 1,600-page plan in the Federal Register.
In addition to Ohio and West Virginia, other states in the coalition are Alabama, Arizona, Arkansas, Indiana, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, and the Commonwealth of Kentucky.
The application argues that unless the EPA holds off, the states will be forced to spend a lot of money and time preparing to meet regulations that the 15 attorneys general are certain will be found unconstitutional.
"In the end, the courts are likely to conclude that...(the plan) is unlawful. At the very minimum, the States and their citizens should not be forced to suffer these serious harms until the courts have had an opportunity to review the Rule's legality," the application argues.
The EPA disagrees about the eventual outcome.
In response to an email request for a comment, EPA spokeswoman Liz Purchia argued the agency is confident the rule will stand up to a constitutional test.
"Over the past six years, the courts have upheld the EPA's air rules far more often than not, agreeing that the agency acts within the authority Congress gave it and makes decisions based on the transparent factual record before it," she wrote.
The heart of the argument the states intend to make is that the EPA has the right to regulate emissions from a particular power plant, but it does not have the right to order an entire state to limit emissions.
The coalition has a secondary, more technical argument as well, based on a difference in language that U.S. House and Senate used in 1990 when the Clean Air Act was updated.
The word difference, normally ironed out, stayed in the final version of the bill and is now law, allowing the agency to regulate power plant pollution under two sections of the law, but not allowing it to apply both sections to the same power plant.
The states are reasoning that since the EPA is already regulating power plant pollution under one section, it cannot use the other section, as it wants to, to regulate carbon dioxide.
Purchia responded: "It is also settled law that Clean Air Act (section 111) gives the EPA authority to issue national rules limiting carbon pollution from stationary sources such as power plants, refineries, and other industrial facilities. We ... are confident that it is consistent with the law."
The EPA's environmental allies are likely to get involved in whatever the states finally file, arguing the benefits of the plan.
The Sierra Club late Wednesday commented commented on states' request for a stay.
"The serious 'harm' they [state attorneys general] referring to are more Ohio jobs in clean energy, lower electricity bills thanks to energy efficiency programs, and improved health thanks to cleaner air," said Dan Sawmiller, senior campaign representative in Ohio and Kentucky for the Sierra Club's Beyond Coal Campaign.