State AGs on Front Lines in Battle over Clean Power Plan

In dismissing as premature a lawsuit brought on July 1, 2015 by Oklahoma Attorney General E. Scott Pruitt against the then-unpromulgated Clean Power Plan, N. D. Oklahoma Judge Claire V. Eagan noted “there is no reason to believe that plaintiffs will have to wait for long before renewing proceedings in the D.C. Circuit if they intend to challenge the final rule.” Judge Eagan was right; less than a month after that dismissal, and only ten days after EPA finalized the Clean Power Plan, the Attorney Generals of fifteen states, led by West Virginia AG Patrick Morrisey, headed to the D.C. Circuit seeking an emergency stay of the 1560-page Plan. The Plan would establish for the first time greenhouse gas emissions guidelines for existing power plants, and is arguably the most ambitious component of the Obama administration’s Climate Action Plan.

The EPA’s eventual defense of the Plan will be aided by a different coalition of state AGs, led by NY Attorney General Eric T. Schneiderman and joined by the AGs of California, Massachusetts, Connecticut, Maine, Vermont, Rhode Island, Delaware, Illinois, Iowa, the District of Columbia, Oregon, Washington, Hawaii, and New Mexico. But for Kentucky AG Jack Conway, a member of the Democratic Party who currently opposes the Plan, the coalitions would divide neatly upon party lines. While there is little doubt that partisan differences on climate change play a role, the divide also reflects differing regional approaches to energy policy. The member states of the Regional Greenhouse Gas Initiative, for example, have lined up in support of the Plan, which contemplates and encourages region-based trading solutions for lowering carbon dioxide emissions.

Should West Virginia’s legal challenge fail – a complex question in itself – State AGs stand to play a pivotal role in shaping the state-designed approaches that lie at the heart of the Plan. EPA has chosen to require that states achieve certain interim carbon dioxide emission rates by 2022-2029 and stricter, final emission rates by 2030, but has not chosen to dictate a particular mixture of policies to reach those goals. This means the nuts and bolts of reducing carbon emissions – including energy efficiency, renewable energy, and re-dispatch of coal generation to natural gas, for example – will be fought out on the state level across the country in coming months and years; submissions of state plans are due in mid-2016 with the possibility of one-year extensions for individual state plans and two-year extensions for multi-state plans. In some states, like Massachusetts, AGs play a substantial formal role in formulating and enforcing energy policy. Elsewhere, the AG’s role is less formal, but the breadth of changes implicated by compliance with the Clean Power Plan is sure to draw state AGs into the public debate. This will be especially true if the regional trading solutions encouraged by the Plan begin to catch on outside the Northeast.

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