Coal-producing states vowed full-scale resistance, including outright defiance, of President Barack Obama’s curbs on greenhouse-gas emissions from power plants.
While states economically reliant on coal have fought draft rules in court and promised to do so again, their battle might escalate to ignoring restrictions entirely.
“If the final rule is not significantly improved, then Hoosiers can be assured that on behalf of families, businesses and other ratepayers, Indiana will not comply,” Republican Governor Mike Pence said in a statement.
At stake, these states say, is the future of the coal industry as well as affordable electricity for consumers. The governors argue that the White House is exceeding its authority and giving the Environmental Protection Agency powers it doesn’t legally possess.
Opponents will argue that the EPA is seeking “to completely restructure the U.S. energy markets in the way energy is generated and dispatched,” said Thomas Lorenzen, a former government lawyer on clean-air cases now with Crowell & Moring in Washington. The Supreme Court has said the agency is “treading on thin ice when it comes to regulating wide sections of the economy without clear congressional authorization,” he said.
Kentucky Attorney General Jack Conway said in a statement Monday he will join other state regulators to ask a federal court to stay the rules.
Kentucky was among states that last year joined an unsuccessful legal attack by Murray Energy Corp., the nation’s largest privately owned operator of underground mines, on a draft of the regulations. Judges dismissed it as premature.
As a first step in a new offensive, states and coal producers are likely to ask a judge to freeze the rules until courts decide whether they’re lawful, said Scott Segal, a lobbyist for coal and power companies at Bracewell & Giuliani LLP in Washington.
There’s precedent: States opposing Obama’s order shielding as many as 5 million immigrants from deportation won a court ruling this year temporarily suspending the plan until courts decide its legality. Like the climate rules, the immigration plan is expected to reach the Supreme Court.
The EPA has had a mixed track record in court, winning most of the challenges against it but also losing some big issues, including a decision in June by the Supreme Court striking down the administration’s rule that forces utilities to close old coal plants or invest in costly equipment to cap toxic mercury pollution.
The court said the agency hadn’t considered the billions of dollars in costs before issuing the rule, and it sent the case back to a lower court for further review.
The EPA has shored up its defense of the new regulations by giving states additional time to comply with the final rule, said Richard Lazarus, a Harvard Law School professor who teaches environmental law.
“The EPA must have realized they might be vulnerable,” Lazarus said.
Murray Energy, based in St. Clairsville, Ohio, meanwhile said it would proceed with five lawsuits against the plan. Robert Murray, founder of the closely held firm, has been a vocal critic of the Obama administration’s “war on coal,” blaming the industry’s woes on “environmental alarmists.”
While some states stopped short of promising litigation, they left little doubt as to their objections. West Virginia Governor Earl Ray Tomblin, a Democrat whose state was part of the original lawsuit, called the regulations “unreasonable, unrealistic and ultimately unattainable.”
Ohio’s EPA director, Craig Butler, said the proposal is being implemented “without a direct mandate from Congress and raises profound legal questions.”
Oklahoma Republican Governor Mary Fallin said her April executive order resisting the rule change remains in effect.
Opposition wasn’t unanimous. California Governor Jerry Brown applauded the restrictions. So did his Democratic colleague, New York Governor Andrew Cuomo, who called it “a strong plan to address climate change.”
Patrick Ledger, chief executive of Arizona Electric Generation and Transmission Cooperatives, said the updated rules are an improvement over what was presented last year.
“The proposed plan would have been, frankly, cataclysmic for our state,” Ledger said. In the final rule “we are very optimistic that this might be the flexibility we were looking for and asking for.”
Still, the loudest voices came from opponents. In Wyoming, the nation’s largest coal producer at nearly 400 million tons annually, the rules are a direct hit, said Travis Deti, assistant director of the Wyoming Mining Association.
“We continue to believe that this is an ill-advised and poorly designed rule,” Deti said. “This rule is specifically designed to eliminate coal. When you kill our customers, you kill our industry.”