Kentucky AG Conway criticizes EPA pollution plan

Kentucky Attorney General Jack Conway and a dozen of his peers from across the country are pushing hard against a recently proposed carbon pollution rule, saying it would require states to undertake a massive overhaul of their energy sectors but give them far too little time to do so.

In recent filings led by the attorney general of West Virginia, Conway said that the U.S. Environmental Protection Agency overstepped its authority when creating the rule. Beyond that, he and other attorneys general said the proposal demands that states rush to complete their work.

The proposed “clean power” rule is a centerpiece of a major push by the Obama administration to help the United States – and the planet – attack climate change by reducing the amount of carbon pollution pumped into the air.

The rule was announced amid fanfare in June. Just this week President Barack Obama told a gathering at the United Nations how vital it was. Meanwhile, the head of the EPA said this week that the rule could be a net plus for the economy, rebutting fears of many critics that it would stifle economic growth.

For Conway and others, the proposed rule is “plainly unlawful,” according to their filing with the U.S. Court of Appeals for the District of Columbia Circuit.

“Without this court’s prompt intervention,” they wrote, states “will be forced to undertake burdensome measures in the coming months to meet the demands of the unlawful rule that EPA committed to proposing and then finalizing.”

The comments from the attorneys general are part of a case filed at the D.C. Circuit, which often handles appeals on federal regulatory issues. Their views also are contained in the voluminous public comments section at the EPA, where citizens, lobbyists, trade associations, companies, environmentalists and others have offered their views.

They include the Kentucky Cumberland Chapter of the Sierra Club, an environmental group that said it felt “the proposal needed to be stronger.” But given the “current political realities,” the group wrote, the proposal represents an acceptable starting point.

Added Wallace McMullen, a Sierra Club officer from Louisville, in an interview: “We believe that global warming is one of the great challenges of our time, and there’s going to be enormous suffering if it’s not mitigated. We think it’s sensible the EPA is starting with coal-burning power plants.”

The comments also come from scores of citizens, many involved in letter-writing campaigns that cut-and-pasted the same lines from either pro- or anti-EPA groups. But while comments may have been repetitive (the “rules are a reckless and unnecessary gamble with the economy, energy prices and American jobs”), they reflected the nerve the rule has hit.

The clean power rule has so far received more than 1 million comments.

Among the most pivotal from a legal standpoint will be the comments and related legal actions taken by Conway and other attorneys general.

Conway’s actions generally revolve around two ideas: that the EPA hasn’t provided all the information necessary for the public to properly decide the issue, and that the EPA has rushed the rule into place on dubious legal grounds.

The missing information deals with the technical analyses the EPA conducted before publishing the proposed rule in June. In all, Conway and others said, the EPA conducted 25 scientific modeling runs to test how the proposal would play out over time – and what impact it might have. The EPA also referred to power plants that boosted their efficiency.

But the supporting documentation on those modeling runs or efficient plants was generally missing, the attorneys general said.

“I am deeply concerned about the EPA’s lack of transparency in this rulemaking, which is highly unusual if not unprecedented,” Conway wrote Aug. 25. The missing information greatly restricts the public’s ability to fully analyze the rule, he wrote.

The broader legal objection deals with the section of the Clean Air Act the EPA is using to justify its proposed rule, as well as whether the EPA is moving too fast trying to put the rule into place. According to the states, coal-fired power plants already are regulated under one section of the Clean Air Act and the law expressly prohibits regulating them again under a different section.

Beyond that, the huge impact of the rule means that states will have to get busy now – before things are even finalized – if they ever hope to comply with it. “States throughout the country have already begun to expend public resources to begin creating their state plans,” the states said in a legal filing this week. In addition to Kentucky and West Virginia, the states on the lawsuit include Alabama, Indiana, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and Wyoming.

“Legally it’s a tremendous expansion of the EPA’s powers,” said Bill Bissett, president of the Kentucky Coal Association, a key trade group. Bissett has already testified at one of the public meetings the EPA held on the rule, and his group is still developing its formal written comments.

The EPA will take comments on the proposal until December.

The legal authority will be hashed out by the courts, and the government, in a response last week, indicated the states’ technical objections were a smokescreen: “Their true aim is plainly to obstruct the ongoing” rulemaking process.

Other states also say the EPA has the authority to act as it has. In fact, a group of a dozen states pushed the EPA toward making the rule in the first place.

In one comment submitted to the EPA, several states say the section of the law in question does give the government the authority it needs to regulate carbon pollution. The states on that comment are New York, California, Massachusetts, Connecticut, Delaware, Maine, Maryland, New Mexico, Oregon, Rhode Island, Vermont, Washington and the District of Columbia.