By Brandon Moseley
Alabama Political Reporter
Tuesday, January 26, Alabama Attorney General Luther Strange (R) announced that Alabama is among a bipartisan coalition of 29 states and state agencies asking the United States Supreme Court to immediately halt President Barack H. Obama’s administration’s CO2 rule for power plants which the states argue is both unlawful and job-killing. The states argue that the Environmental Protection Agency’s (EPA) Clean Power rule is an unprecedented attempt to reorder the nation’s energy sector and violates federal law.
Attorney General Luther Strange said, “Once again, President Obama has attempted to radically expand the power of the federal government by adopting policies through executive action that Congress has refused to enact. But the scope of President Obama’s job-killing Clean Power Plan is unprecedented. If this new EPA rule is allowed to go into effect, it will shutter coal-fired power plants around the country, resulting in higher electricity costs and fewer jobs. The United States Supreme Court should act to immediately stay this rule until the lower courts can address the serious concerns the states have raised about its legality.”
Texas Attorney General Ken Paxton said, “The Obama Administration has exceeded its authority in imposing a plan that will kill jobs and significantly raise electric bills for all Americans. This power grab will force a massive reordering of nearly every state’s electric grid and result in less-reliable service for all customers. Such far-reaching actions raise serious concerns about the power of the federal government.”
The states won a major case in June when the Court blocked EPA’s mercury emissions rules. Undeterred by the defeat, the Obama released new rules on ozone and CO2 rules which effectively did the same thing.
The bipartisan coalition of states challenged the EPA’s power plan on October 23, 2015, the day it was published. Those urging the U.S. Supreme Court to immediately halt the EPA’s unlawful power plan include: Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin and Wyoming, along with the Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality and Oklahoma Department of Environmental Quality.
The states in their filing point to the Court’s decision last term in Michigan v. EPA: “The day after this Court ruled in Michigan that EPA had violated the Clean Air Act (CAA) in enacting its rule regulating fossil fuel-fired power plants under Section 112 of the CAA, 42 U.S.C.§ 7412, EPA boasted in an official blog post that the Court’s decision was effectively a nullity. Because the rule had not been stayed during the years of litigation, EPA assured its supporters that “the majority of power plants are already in compliance or well on their way to compliance. Then, in reliance on EPA’s representation that most power plants had already fully complied, the DC Circuit responded to this Court’s remand by declining to vacate the rule that this Court had declared unlawful….In short, EPA extracted nearly $10 billion a year in compliance from power plants before this Court could even review the rule, Michigan, 135 S. Ct. at 2706, and then successfully used that unlawfully-mandated compliance to keep the rule in place even after this Court declared that the agency had violated the law. In the present case, EPA is seeking to similarly circumvent judicial review, but on an even larger scale and this time directly targeting the states.”
The states claim that the Plan is, “The most far reaching and burdensome rule EPA has ever forced onto the States. Relying on five words in a rarely-used provision of the CAA—“best system of emission reduction”—EPA claims the authority to require States to achieve massive carbon dioxide emission reductions that EPA has calculated based on “shifting” electric generation away from fossil fuel-fired power plants to other sources of energy—such as wind and solar—that EPA prefers.”
The states claim that, “If this Court does not enter a stay, the Plan will continue to unlawfully impose massive and irreparable harms upon the sovereign states, as well as irreversible changes in the energy markets. In the proceedings before the DC Circuit, the 27 states that sought to stay the Plan and the 18 States that defended it submitted declarations explaining that states are already expending significant time and resources to implement the Power Plan. These federally mandated efforts are forcing states to expend money and resources, displacing the states’ ability to achieve their own sovereign priorities, and requiring some states to change their laws to enable or accommodate a shift from fossil fuel-fired generation to other sources of energy. And parties on all sides agree that the Plan is currently forcing businesses to shutter plants and make other decisions with long-term and fundamental impacts on energy markets, further compounding the injury to states as market regulators and energy consumers. Only a stay from this Court now can ensure that EPA will not, in another year or two, once more boast that it has rendered this Court’s review practically meaningless. Absent a stay, the Power Plan will throughout the lifespan of this litigation—force massive, irreversible changes in terms of state policies and resources, power plant shutdowns, and investments in wind and solar power.”
The new CO2 rules combined with low natural gas prices and already ongoing federal litigation have already led Alabama Power to shut down a number of coal fired power plants in Alabama. President Obama’s ongoing ‘War on Coal’ has led to the loss of thousands of good paying coal mining jobs as well as transportation sector jobs which were tied to moving coal across the country.
Luther Strange has said that he wakes up every day thinking of new ways to fight the Obama Administration.