On November 3, 2015, the State of Wisconsin joined 23 other states in filing a lawsuit before the United States Court of Appeals for the D.C. Circuit challenging the United States Environmental Protection Agency’s (EPA) new rules limiting the carbon dioxide (CO2) emissions from new, reconstructed and modified coal and natural gas-fired electric generation units. Among other things, Wisconsin will argue that the rule “prevents Wisconsin from building new coal-fired power plants by requiring new plants to use carbon capture and sequestration, a developing technology that has not been ‘adequately demonstrated’ as required by the Clean Air Act.” Joining Wisconsin in the lawsuit are: Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wyoming, the Arizona Corporation Commission, the Louisiana Department of Environmental Quality and the North Carolina Department of Environmental Quality.
As readers may recall, on October 23, 2015, Wisconsin joined most of these same states in filing a legal challenge to EPA’s companion rule limiting the CO2 emissions from existing coal and gas-fired electric generation units (i.e., the “Clean Power Plan”). In this lawsuit, states will likely argue that the Clean Power Plan exceeds federal authority by forcing states to restructure their electric generation portfolios in favor of lower carbon sources. These states may also argue that the Clean Power Plan illegally establishes a cap and trade emission trading system without authority from Congress. Notably, the CO2 emission standards established by EPA for newly-constructed power plants are less stringent than the numeric emission rate goals established for existing power plants. This too may be an issue raised in these legal challenges.
In both of these lawsuits, other states have come forward in support of the EPA’s rules. These include New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, Oregon, Rhode Island, Virginia, Washington State, Hawaii, and Vermont. Other units of government have also joined the lawsuit to support EPA, including Washington D.C., the cities of New York, NY, Chicago, IL, Philadelphia, PA, South Miami, FL, and Boulder, CO, and Florida's Broward County.
Many states, including Wisconsin, have asked the Court to stay implementation of the Clean Power Plan (i.e., direct EPA to stop the rule’s implementation until the legality of the rule is resolved by the Court). The Court has established an aggressive briefing schedule for deciding these stay motions. Nonetheless, a decision from the Court on the stay motions will not be issued until after the United States participates in the 2015 United Nations Climate Change Conference in Paris. It is anticipated that the merits of the legal challenges will ultimately be decided by the United States Supreme Court in 2017 or 2018 after President Obama completes his term.
In a related matter, Attorney General Brad Schimel recently announced the appointment of Misha Tseytlin as the Solicitor General for the State of Wisconsin. Attorney Tseytlin is currently serving as General Counsel to West Virginia Attorney General Patrick Morrisey and will assume his new role in Wisconsin on November 30, 2015. Tseytlin has been intimately involved in the State of West Virginia’s lead role in challenging EPA’s Clean Power Plan. As such, it is anticipated that he will assume a prominent role as Solicitor General representing the State of Wisconsin in these continuing legal challenges. Tseytlin is also a former law clerk for United States Supreme Court Justice Anthony Kennedy. This is noteworthy since Kennedy is widely thought to be a possible swing vote in any Clean Power Plan legal challenge that reaches the U.S. Supreme Court. Justice Kennedy is generally regarded as an advocate for state rights and, as mentioned above, such arguments will likely be advanced in challenges to the Clean Power Plan.