Published On: Fri, Aug 29th, 2014

AG Morrisey sends letter to EPA outlining agency’s failure to follow its own rule-making process

West Virginia Attorney General Patrick Morrisey this week sent a letter to U.S. Environmental Protection Agency Administrator Gina McCarthy, which outlines further legal objections to EPA’s plan to regulate carbon dioxide emissions from existing and modified power plants.

In the letter, which is co-signed by attorneys general from 12 additional states, Morrisey notes EPA failed to include required and critical information in the regulatory dockets of two recent proposed rules: one relating to carbon dioxide emissions for existing sources, and one relating to carbon dioxide emissions for modified sources. Because EPA did not include in the dockets key materials on which the agency relies as support for those Proposed Rules, it violated Section 307(d) of the Clean Air Act. As such, the rules must be withdrawn.

“This is another blatant example of this agency’s disregard for the rule of law. The public has a clear right to know how EPA reached its conclusions,” Attorney General Morrisey said. “It is abundantly clear that EPA and the Obama Administration will not allow anything to get in the way of enacting these illegal, burdensome regulations on coal-fired power plants.”

Section 307(d) of the Clean Air Act explicitly requires that all data, information, and documents used to create proposed rules must be made available to the public at the time of proposal to allow for meaningful comment. Finalizing a rule without providing parties with the technical information needed for meaningful comment renders the proposed rules unlawful.

The letter provides three specific examples in which EPA violates Section 307, and in light of those violations, asks the agency to withdraw both the Existing Source Rule and Modified Sources rule immediately. Alternatively, the letter asks that the EPA publish the missing data immediately and extend the comment period 120 days from the date of such publication.

“Our Office will not ignore the repeated violations of process and law that this agency is using to force its rules for carbon emissions on the states,” Attorney General Morrisey said. “We will continue to use every tool available to fight for coal miners and the jobs that the coal industry supports.”

The letter is also signed by the attorneys general of Alabama, Indiana, Kansas, Louisiana, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota and Wyoming.

A copy of the letter can be viewed here: http://bit.ly/1p5MWlm.