More than a dozen states petitioned a federal court Friday to rehear a case opposing the Obama administration's plan to cut emissions from existing power plants.
The emission cuts were proposed last year by the Environmental Protection Agency in regulations that place the states on the hook to reduce greenhouse gas emissions from power plants. Most scientists say the emissions the rules seek to cut are the cause of manmade global warming. The rules are the centerpiece of President Obama's climate change agenda.
The states argue that the rules, called the Clean Power Plan, overstep the EPA's authority and are illegal. Their appeal to the D.C. Circuit Court of Appeals comes as the rules are being finalized before becoming law, expected in early August.
The states, led by West Virginia Attorney General Patrick Morrisey, sued EPA in the court before. But the court ruled the lawsuit was premature because the Clean Power Plan had not been made final. The court only addresses challenges against final regulations.
In Friday's petition, Morrisey used a recent Supreme Court ruling against the EPA in making the states' argument for the court to rehear the case.
The Supreme Court ruled against the EPA in June on a separate power plant rule. Morrissey argues that under the D.C. Circuit "majority's decision, an agency can repeatedly threaten regulated parties to make immediate expenditures to comply with an unlawful but not-yet-final rule, and evade legal accountability for this misconduct."
He noted that the EPA touted that strategy after the Supreme Court ruled against it in June. The high court ruled that the agency could not ignore compliance costs in implementing a power plant regulation. The ruling was against the EPA's implementation of rules for mercury and toxic air pollutants. But the ruling came years after companies already spent billions of dollars to comply. Morrisey appears to want to avoid similar expenditures before the the D.C. Circuit court has a chance to rule on the Clean Power Plan, according to the petition.
"Absent rehearing, this powerful tool [of agency discretion] will only further enable agencies to make their policy goals a practical reality before the courts can review their legality — a tactic EPA brazenly touted after losing in Michigan v. EPA" in the Supreme Court, Morrissey says in his petition for rehearing.
The states are also asking the court to stay the ruling as an option for rehearing the case. If the court agrees to stay the case, they would wait until the Clean Power Plan is made final, and then issue a new decision, according to Morrissey.
"EPA is expected to finalize the Section 111(d) Rule any day now," Morrisey writes. "When EPA thereafter publishes the final rule in the Federal Register, the panel could vacate its decision and leave for another time the delineation of this court's authority to stop extreme agency misconduct during a rulemaking.
"This panel could then promptly adjudicate the legality of the Section 111(d) Rule, serving the interests of both judicial efficiency and the public interest."