A bipartisan coalition of 29 states and state agencies filed an application with the U.S. Supreme Court yesterday to immediately halt the Obama Administration’s power plan while litigation continues in the D.C. Circuit Court.  The application for immediate stay of the final EPA rule imposing far-reaching climate rules for power plants was filed by the Texas Attorney General and West Virginia Attorney General, with other participants in the emergency application including Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin and Wyoming, along with the Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality and Oklahoma Department of Environmental Quality. 

On October 15, 2015, the day the EPA’s “Clean Power Plan” became subject to judicial review, the states filed petitions for review of the plan and moved simultaneously for a stay pending court review.  After the D.C. Circuit Court denied the motions for a stay on January 21, 2016, the states have now undertaken the unprecedented move of going straight to the Supreme Court for an immediate stay of the new rules.  The court of appeals still plans to review the EPA rules, however, and oral arguments are scheduled for June.

The states contend that the massive legislative and regulatory changes necessary to comply with the EPA plan, which are irreparable harms themselves, will also undermine the states’ ability to maintain and achieve their own sovereign priorities.  “The Obama Administration has exceeded its authority in imposing a plan that will kill jobs and significantly raise electric bills for all Americans,” Texas Attorney General Ken Paxton said. “This power grab will force a massive reordering of nearly every state’s electric grid and result in less-reliable service for all customers. Such far-reaching actions raise serious concerns about the power of the federal government.” West Virginia Attorney General Patrick Morrisey underscored the problem faced by the states:  “Without Supreme Court intervention, West Virginia and other states will suffer irreparable harm as job creators and state agencies spend untold resources to comply with a rule that is likely to be struck down as illegal.”  The states argue that the EPA’s rule fundamentally changes the nation’s energy policy in violation of federal law.