Texas and West Virginia Sue Obama Administration over New Clean Air Regulations

Texas and West Virginia have filed a lawsuit on behalf of 24 states against the Obama administration over new regulations from the Environmental Protection Agency (EPA) that aim to reduce carbon emissions from power plants. The lawsuit claims that by enacting Rule 111(d), or the Clean Power Plan, the EPA and the administration are exceeding their legal authority under the Clean Air Act. The regulation aims to reduce power-plant carbon emissions by 32 percent by 2030 compared to 2005 standards. The regulation sets specific emissions goals for each state and provides states with multiple options on how to meet those goals. The lawsuit claims these standards will radically restructure the way electricity is produced and consumed throughout the country, resulting in dramatically higher electricity bills and less reliable service. In its press release about the lawsuit, the Texas Attorney General’s Office cites a report by the Electric Reliability Council of Texas that claims the new rules will result in a 16 percent increase in the cost of electricity by 2030, not including new transmission lines and other costs needed to comply with the regulations.

The petition for review is pending in the U.S. Court of Appeals for the D.C. Circuit and asks the court to overturn the law. The parties have also filed a motion for stay and seek expedited review of their petition for review. Texas and West Virginia previously tried to sue to block the law, but the court dismissed the suit on ripeness grounds because the regulation was merely a proposal at that point and had not gone into effect. The final regulation was published in the Federal Register on Friday, October 23, 2015, and the lawsuit was filed that same day. Joining Texas and West Virginia in the suit are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, South Carolina, South Dakota, Utah, Wisconsin and Wyoming. New York and other states with more liberal governments are expected to file amicus briefs in support of the new EPA regulations.

Keywords: energy litigation, Clean Power Plan, Clean Air Act, carbon emissions, Texas, West Virginia

_{Courtney Scobie, Ajamie LLP, Houston, TX}

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