EPA: States can’t ‘preempt’ climate rule

The Obama administration told an appeals court that 12 states cannot preemptively challenge its landmark proposed climate rule for power plants.

Justice Department attorneys, on behalf of the Environmental Protection Agency (EPA), told the court Friday that the rule cannot be challenged in court until it is made final later this year.


The states also cannot sue against a 2010 court settlement because it did not obligate the agency to write the regulation, it said.

“The premise of petitioners’ suit is wrong; the proposed rule is not the result of that settlement agreement, but rather part of an administration initiative to address the most critical environmental problem of our time,” the EPA wrote in its brief responding to the lawsuit from West Virginia and 11 other states.

The states also argue that because other power plant pollutants are already regulated by the EPA, it cannot order the 30 percent cut in carbon emissions that it proposed in June.

But the EPA said the 1990 law the states rely upon “is ambiguous and can be read multiple ways, allowing for reasonable agency interpretation.” The House and Senate passed different language that was never reconciled, so the EPA should be allowed to use a reasonable interpretation, it said.

But the timing of the lawsuit is the most important argument against the court taking action, the agency said.

“Above all, petitioners are wrong to think that they can preempt a rulemaking,” the EPA wrote. “This court has never so allowed, and it should not do so now.”

The Obama administration is using a similar argument in a lawsuit that coal mining company Murray Energy Corp.

In a separate brief, it called that lawsuit “one volley in a barrage of premature litigation trying to stop EPA.”

The 12 states will have an opportunity in February to respond to the EPA’s arguments in another brief.