The Environmental Protection Agency (EPA) should withdraw rules to limit carbon emissions from power plants because they will not survive a lawsuit, West Virginia's attorney general said Friday.
Attorney General Patrick Morrisey, a Republican, did not threaten a suit but predicted the courts would rule that EPA’s rule is illegal under the Clean Air Act, because power plant emissions are already federally regulated.
“In light of the profound legal infirmities with the proposed rule, EPA’s unprecedented policy will not survive judicial review,” Morrisey wrote Friday in his letter. “Failure to withdraw the proposed rule will only cause citizens, states, industry and environmental groups to waste valuable resources analyzing and commenting on a futile endeavor.”
Morrisey said section 111(d) of the Clean Air Act, which EPA used as justification for its June 2 proposal to reduce carbon dioxide emissions from power plants by 30 percent, actually prohibits the regulation, because other harmful pollutants from power plants are already limited.
“No matter how fervent the desire by some to advance the policies underlying these regulations, EPA cannot — and should not — do so at the expense of the rule of law.
Lawsuits against the rule cannot be filed until it is made final, which EPA plans to do in about a year.
Legal experts expect EPA to be sued over the rule, likely by the coal industry. While it allows states flexibility in how they meet EPA’s carbon reductions, that could be what causes a court to overturn it.
While states such as West Virginia might challenge the rule, Kentucky has already been working to cut carbon emissions from power plants, the New York Times reported.