W.Va. among 19 states asking Supreme Court to stop appeals court ruling related to Environmental Protection Agency

West Virginia

CHARLESTON, W.Va. – West Virginia Attorney General Patrick Morrisey led a 19-state coalition Thursday to urge the U.S. Supreme Court to stop an appeals court ruling related to the Environmental Protection Agency.

According to a press release, the ruling would give the EPA “virtually unlimited authority to regulate wide swaths of everyday life with rules that would devastate coal mining, increase energy costs and eliminate countless jobs.”

The coalition argues that the lower court erred in using a small provision of federal law to grant the EPA broad authority—without congressional input—to unilaterally decarbonize virtually any sector of the economy, including factories and power plants, as well as the millions of homes and small businesses that use natural gas for heat.

According to the West Virginia Attorney General’s Office, Morrisey prevailed in urging the Supreme Court to block a similar attempt by President Obama, and now he cites that victory and the “insurmountable costs of President Biden’s proposals” in arguing for the Supreme Court to step in and define the reach of the EPA’s authority once and for all.

Without the Supreme Court’s intervention, the coalition argues the ruling could set a “devastating standard” and lead to decisions of great economic consequence based upon unlawful EPA regulations, not the rule of law, Morrisey said.

“This wildly expansive power to regulate factories, hospitals and even homes has tremendous costs and consequences for all Americans, in particular West Virginia’s coal miners, pipeliners, natural gas producers and utility workers as well as the countless others who rely upon their success,” Morrisey said. “If EPA lacks such expansive authority, as we argue, the Supreme Court should make that clear now. Any further delay will impose costs the energy sector can never recoup and force states to sink even more years and resources into an enterprise that is – at best – legally uncertain.

“The appeals court ruling seeks to transform EPA from serving as an environmental regulator into a central energy planning authority – yet it was never designed to have so much power over states and the livelihood of American families,” he added.

The coalition’s petition, filed Thursday, argues that a ruling from the U.S. Court of Appeals for the District of Columbia Circuit violates the constitutional separation of powers. It contends that the lower court inappropriately interpreted Section 111 of the Clean Air Act as authorizing the EPA to sidestep Congress to exercise broad regulatory power that would radically transform the nation’s energy grid and force states to fundamentally shift their energy portfolios away from coal-fired generation.

The petition also contends that the appeals court ignored a February 2016 stay instituted by the Supreme Court, which the coalition argues should have hinted that the high court viewed existing law as limiting the EPA’s authority—not expanding it, the release explains.

Morrisey argues that the more recent appeals court ruling would grant the EPA even greater authority than President Obama’s EPA originally claimed.

The petition further cites a prior case, Michigan v. EPA, as an example of when perception of the EPA’s power amid pending litigation forced regulated entities to comply with regulations that the Supreme Court eventually deemed unlawful.

The coalition argues that if market forces could have been shaped so dramatically amid a pending case, delaying review will likely lead to even more significant and irreparable change, according to the attorney general’s office.

Morrisey said he challenged the Obama-era Power Plan on the day it was published. President Trump’s EPA, in acknowledging the February 2016 stay, repealed the rule in 2019, and the underlying case was dismissed by the appeals court without the Supreme Court having a chance to resolve the matter on the merits, the release states.

West Virginia led Thursday’s petition with support from attorneys general in Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wyoming and the governor of Mississippi.

Read a copy of the Attorney General’s petition here.

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