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Attorney General Madigan Joins Coalition of 25 States, Cities and Counties in

New York State recently adopted ambitious energy efficiency, renewable energy and climate goals in its State Energy Plan, and initiated the Regional Greenhouse Gas Initiative, the nation’s first program to cut global warming pollution from fossil-fuel-burning power plants.

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Wisconsin Attorney General Brad Schimel, along with 23 other states, filed a federal lawsuit against the “Clean Power Plan”.

Oklahoma argues that its state powers are being usurped by the EPA, violating the constitution’s concept of “cooperative federalism”, and that the agency is violating the law by seeking emissions reductions that can’t be met by the power plants themselves. The U.S. Chamber of Commerce led a coalition of business groups filing a separate legal challenge. Rather, if a state can not meet its goals or fails to submit a plan, EPA would apply a federal rule that would establish emission rates for specific EGUs in the states, and states would be free to seek approval of revised plans to take over regulation. But states and power generators say they are already beginning to accrue costs, though there is no way to tell if the rule will ultimately be upheld. “We are committed to aggressively defending the Clean Power Plan to ensure progress is made in confronting climate change”.

“The rule incorporates successful strategies New York and other states have used to cut climate change pollution from power plants while maintaining electricity reliability, holding the line on utility bills, and growing our economies”, Schneiderman said. The Obama administration and environmental groups counter that the new rules are needed to stave off the worst predicted impacts of climate change.

After Herring’s announcement, the American Lung Association in Virginia said it supported the move, saying the Clean Power Plan when fully implemented will save up to 6,600 premature deaths nationwide each year, and up to 150,000 asthma attacks. That case was tossed out in June because the states couldn’t challenge the plan because the EPA had not finalized it. And Senate Majority Leader Mitch McConnell, R-Ky., has said he’ll try to engineer a legislative rejection of the new rules, though a veto by President Barack Obama would likely hold.

A federal court won’t rule on the issue until late December at the earliest. As Professor Tribe notes, there is little real choice when state policies are in fact compelled by the EPA: “Such sleight-of-hand offends democratic principles by avoiding political transparency and accountability”. “The EPA is going far beyond its legal authority under the Clean Air Act”, Rutledge said in a news release.

And, while proponents of the Clean Power Plan claim that it won’t remake the electrical grid overnight, it will begin to bite quickly as it takes several years to plan, fund and build power plants.

Long recognized as an out-of-control rogue agency, the current EPA knows it’s a lame duck and is working feverishly to maximize the damage it will wreak on our electricity supplies over the next 15 months.

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The result is that affected power sector entities and interested stakeholders must carefully monitor developments in the courts and in the individual states (perhaps multiple states at the same time) to assess the risks and challenges they face moving forward.

States Fight EPA Limits on New Coal Fired Power Plants