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WV Attorney General Patrick Morrisey Sends Letter to EPA Outlining Legal Objections to Clean Power Plan

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In response to the June 2 Clean Power Plan announcement, West Virginia Attorney General Patrick Morrisey sent a letter to the United States Environmental Protection Agency on June 6 outlining legal objections to the plan.

In the detailed nine-page letter, Morrisey asserts that the EPA “lacks authority” under the Clean Air Act to promulgate the rule, and urges the organization to withdraw the proposal.

He also explains that the proposed rule violates the “literal” terms of the Act.

“The agency relies entirely on a one-sentence clerical entry in the 1990 Amendments to the Clean Air Act that was not codified in the U.S. Code but appears in the Statutes at Large,” the letter reads. “That entry, even EPA has admitted, was clearly a mistake because it sought to make a technical correction rendered moot by another amendment.”

Morrisey continued to say, “It is simply unconscionable for EPA to go forward with this massive and costly regulation based entirely upon what it has admitted to be a clerical ‘drafting error.’”

According to a statement released by the Attorney General’s Office, the Clean Air Act explicitly prohibits EPA from regulating existing power plants under one section of the Act, namely Section 111(d), when it already decided to regulate those power plants under a different section. The EPA previously issued regulations under Section 112, which it estimates will cost power plants more than $9 billion dollars per year in order to comply. The law does not permit double regulation of these power plants.

“Our Office is happy to assist the EPA in helping to achieve responsible environmental protection that does not destroy the livelihoods of thousands of West Virginians, and that comports with the rule of law,” Morrisey said in the statement. “But what the EPA cannot do is blatantly violate the law in order to achieve its policy goals. That is exactly what the agency is attempting to do here.”

View the entire letter here.