AG announces bipartisan brief opposing cross-state air pollution regulations

FRANKFORT, Ky. (Nov. 15, 2013) — Attorney General Jack Conway announced today that Kentucky has joined eight other states in a major brief filed in the United States Supreme Court opposing the U.S. Environmental Protection Agency’s new rule on cross-state air pollution.

The amicus brief argues that EPA exceeded its authority under the federal Clean Air Act when the agency promulgated a rule in 2011 announcing new air pollution cuts and imposing federal implementation plans on states. The brief argues the CAA requires the EPA to give states an opportunity to decide how to meet new air pollution standards.

The brief was signed by a bipartisan group of attorneys general representing the states of West Virginia, Arizona, Arkansas, Kentucky, Missouri, Montana, North Dakota, South Dakota and Wyoming. It was filed in support of 15 other states, as well as industry groups and labor organizations, who sued EPA on this issue in 2011. In August 2012, the U.S. Court of Appeals for the D.C. Circuit struck down the regulation, saying that it “exceeds the agency’s statutory authority.” The Supreme Court agreed to review the rule earlier this year.

“Other state attorneys general and I are urging the nation’s highest court to uphold the appellate court decision and leave important questions about how states should meet new air pollution standards at the state level, as clearly spelled out in the Clean Air Act,” General Conway said.

According to the court of appeals’ opinion, “EPA’s rule defines emissions reduction responsibilities for 28 upwind States based on those States’ contributions to downwind States’ air quality problems. The Rule limits emissions from upwind States’ coal- and natural gas-fired power plants, among other sources. Those power plants generate the majority of electricity used in the United States.”

The court of appeals’ opinion held that EPA crossed the Clean Air Act’s “federalism bar” when EPA attempted to take away the states’ right to decide how to make cuts in air pollution within their borders. As the court explained, “a State may decide to impose different emissions limits on individual coal-burning power plants, natural gas-burning power plants, and other sources of air pollution, such as factories, refineries, incinerators, and agricultural activities.”

The parties to the case will present oral arguments before the Supreme Court in December. A decision is expected by next June.