Clean Power Plan Clears Legal Hurdle

By Brian Sewell

Editor’s Note: This article was written before the U.S. Supreme Court issued a stay that temporarily halts implementation of the Clear Power Plan. To read more about this update, visit here.

States challenging the U.S. Environmental Protection Agency’s Clean Power Plan in federal court are running out of legal options and losing valuable time as most states look to a carbon-constrained future. In January, the U.S. Court of Appeals refused to suspend the Obama administration’s climate regulations while lawsuits move through the courts.

That’s bad news for states including North Carolina, West Virginia and Kentucky that are seeking to block the plan despite public support for clean energy and limits on carbon emissions from power plants. But according to West Virginia Attorney General Patrick Morrisey, who is leading the case against the U.S. Environmental Protection Agency, the plaintiffs “remain confident that our arguments will prevail as the case continues.”

Days after the the decision, states and industry groups petitioned the U.S. Supreme Court to put a stop to the Clean Power Plan. While early legal challenges appear to be floundering, attempts to obstruct the plan at the state level are alive and well.

Officials in North Carolina crafted what its critics are calling a “plan to fail,” primarily to draw the EPA into a legal battle, that achieves less than 3 percent of the reduction in annual carbon emissions required under the Clean Power Plan. Kentucky’s top environmental regulator announced the state would seek an extension for its compliance plan, taking care to note that there is no “minimal level of progress” required for an extension.

At press time, the EPA and groups supporting the Clean Power Plan — including 18 states, more than two dozen power companies, clean energy associations and public health and environmental groups — were filing their responses to the request before the Supreme Court.