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WV, 20 other states ask EPA not to settle on greenhouse gases

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West Virginia has joined 20 other states asking the U.S. Environmental Protection Agency not to settle with states and groups threatening to sue over its lateness in regulating greenhouse gas emissions from power plants.

In a letter dated June 18, the attorneys general of 21 states, West Virginia Attorney General Patrick Morrisey included, urged the agency's acting administrator not to enter into settlement negotiations in the matter or, alternatively, to give all states the opportunity to participate in the resolution of the threatened suit.

Attorneys general from Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Michigan, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and Virginia also signed the letter.

The suit was threatened in April notices of intent that 10 states, the District of Columbia, the City of New York and several environmental groups filed with the Environmental Protection Agency, alleging a failure to regulate greenhouse gas emissions under timelines mandated by the Clean Air Act.

The agency should have finalized regulations for emissions from new power plants within one year of its April 13, 2012 proposal, they said, as mandated by the Clean Air Act. It also should have proposed and finalized rules for emissions from existing power plants by now.

A notice of intent to sue, or NOI, gives an agency 60 days to redress the complaint before a suit may be filed. Those NOIs are dated April 15, 22 and 29 — meaning lawsuits could be filed at any time.

The states and other entities threatening to sue offered to explore "any means of resolving this matter without the need for litigation." They included Connecticut, Delaware, Maine, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington, along with New York City, Washington D.C., the Environmental Defense Fund, the Sierra Club, the Natural Resources Defense Council and the Conservation Law Foundation.

The June 18 letter from the 21 states says the threatened suits lack merit. It asks the EPA to refrain from allowing the petition to unduly influence the policymaking process via settlement negotiations.

"The proposed regulations will directly impact coal-producing states such as West Virginia," Morrisey said. "Crafting policy of this magnitude should take place in the light of day, not in closed door settlement negotiations."

Many have observed that the proposed greenhouse gas rules for new power plants would essentially prohibit the construction of new coal-fired power plants unless they use carbon capture and storage technology, which is still new, only little tested, and expensive.

Many also have observed that, without regulatory pressure, the technology never will be fully developed and commercialized.