Living in Another World: Dirty-Energy State Attorneys General Attack Clean Power Plan (Again)

The attorneys general of West Virginia and 14 other states filed another premature, defective lawsuit today in an effort to stop the Environmental Protection Agency's Clean Power Plan. Nothing new here.

Update Sept. 9: The Court of Appeals for the D.C. Circuit threw out West Virginia's case today, along with a companion case filed by Peabody Energy. The challengers are now batting 0 for 8 in attacks on EPA's power plant carbon pollution standards.

Their latest case comes the same week that the dwindling but hardy band of polluter-backed climate deniers launched their latest "CO2-is-good-for you" PR campaign - "that carbon dioxide is plant food and shouldn't be controlled," according to E&E News.

What planet do these old-school-energy AGs and climate contrarians think they are living on?

After going 0 for 6 in premature challenges - all thrown out of court - the AGs have jumped the gun again. They filed their latest case in the U.S. Court of Appeals in Washington under the "All Writs Act." This despite a June ruling by a conservative three-judge panel that the "All Writs Act" doesn't allow a challenge to the Clean Power Plan.

The judges explained in June that the AGs will get their day in court under the Clean Air Act if they just follow the rules. Once the final Clean Power Plan rule is published in the Federal Register - which will happen in the normal course of things in the next few weeks - challengers will be able to bring proper lawsuits.

When they do, the AGs will confront a Clean Power Plan that rests on solid legal ground. We've explained here and here why the challengers' legal attacks are likely to fail. The Supreme Court has already found that EPA has authority to curb power plants carbon pollution under the very part of the Clean Air Act that the agency used. And the AGs' breathless claims of immediate harm have no substance.

To block the Clean Power Plan, its foes have to show "irreparable injury" in the time it takes for the court to decide a properly-filed case on the normal schedule - roughly a year. They won't be able to do it. Under the final Plan, power companies will have the next seven years to get ready for compliance in 2022. The states have three years to submit a state plan, and they don't have to do it at all - they have the right to refuse and to leave power plant regulation entirely to the EPA.

The Clean Power Plan is a historic step to rein in power plant pollution that will speed America's transition to cleaner energy, protect our health and help to safeguard future generations from the worst effects of climate change, and position the United States for global leadership on climate change. It is a step out of the past, into the future.

The climate-denying attorneys general and CO2-is-good-for-you contrarians are living in another world. I wish they actually had another world for their bizarre legal theories and mad scientist experiments, not the world that my kids have to live in.

About the Authors

David Doniger

Director, Climate & Clean Air program

Join Us