April 13, 2016 at 5:00 am ET
When the Supreme Court decided to stay the EPA’s Clean Power Plan 111(d) rule, the message was clear to the states – stop work. That is what Michael J. Nasi says in a new paper by the Texas Public Policy Foundation entitled, “Why Suspending State Planning Makes Sense In Light Of The Supreme Court Stay Of The 111(D) Rule”.
Nasi has practiced environmental and energy law for 23 years and is currently a partner with Jackson Walker L.L.P. in Austin, Texas. He is a nationally-recognized environmental law and energy policy expert and is counsel for rural electric cooperatives and other electric generation and mining interests in several federal court proceedings regarding EPA air quality regulations. So he should know.
One hundred and fifty-seven parties filed 39 petitions challenging the 111(d) Rule in the DC Circuit court. On January 21, 2016, the DC Circuit denied all the pending stay motions, stating only that the challengers had not satisfied the “stringent requirements of a stay pending court review.” Instead of a stay, the DC Circuit set the case on an expedited briefing schedule, with oral argument set for June 2.
After the DC Circuit Court made its decision, state and industry challengers applied to the Chief Justice of the United States Supreme Court for an emergency stay. On February 9, 2016, the Supreme Court, in a 5-4 decision, granted the applications, staying the 111(d) Rule through the conclusion of the litigation.
In the paper, Nasi makes several key points. First, in its decision, the Supreme Court has suspended the 111(d) Rule, including all deadlines. As part of the Clean Power Plan rule, states were required to submit initial state plans, or request a 2-year extension, by September 6 of 2016. One of the key points made in the court filings was that precious state taxpayer resources should be focused on other priorities until it is clear that the 111(d) Rule will survive judicial scrutiny. It is important that States not undermine this premise by continuing to dedicate state resources to a rule that has no deadlines in effect and may never survive.
Second, Nasi says even states who opposed the stay motions, that is, states who support the EPA’s efforts to take control of the electric power sector, should stop work because, also as stewards of taxpayer dollars, state agencies should not be consuming state resources unless and until it is necessary and prudent to do so.
Third, the 111(d) Rule’s future is uncertain at best and leading legal scholars believe the rule will, at minimum, need to be changed by EPA to survive. State’s should not waste taxpayer dollars and stakeholder time and resources shooting at a moving target, especially given how politically divisive the state planning process is likely to be.
And this rule, perhaps more than any other rule in the history of the EPA, has been politically divisive. The stakes are high. Major companies have been forced into bankruptcy over this rule. Not just coal companies. Thousands of jobs have been threatened and/or eliminated by the impact of the rule. All this while the Congress is investigating the hidden science underlying the rule, and questions abound as to whether the massive costs are worth the slim benefits.
It is unlikely that court review of the rule will be complete until mid-2017 at the earliest. Governors, attorneys general, and state legislators, as responsible stewards of public funds, should stop all action on complying with this rule and wait for a final ruling from the court.
The Honorable Doug Domenech is the Director of the Fueling Freedom Project at TPPF.