Arkansas may seek different venue to challenge EPA ‘dirty air’ rules

Gov. Asa Hutchinson said Arkansas may shop for another federal venue to challenge the president’s controversial Clean Power Plan after the U.S. Court of Appeals for the District of Columbia threw out a lawsuit filed by Arkansas and 13 other coal-friendly states.

“We always knew that litigation with the D.C. Circuit was going to be problematic and an uphill climb because of the nature of the court and their leniency,” Hutchinson said of the federal appellate court.

“We’d like to get a venue outside of the D.C. (court) to take another crack at this issue,” Hutchinson told reporters during a “pen and pad” session at the Governor’s Mansion. “In talking with some of the other governors, I know that they are looking at perhaps a different venue to challenge the EPA’s rule.”

Originally, a dozen states filed a lawsuit in August to challenge the Environmental Protection Agency’s (EPA) regulation drafted nearly a year ago that would cut existing power-plant carbon emissions from 2005 levels by 30% by 2030. Those states include West Virginia, Alabama, Alaska, Indiana, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Dakota, Wyoming and Kentucky.

In February, Arkansas Attorney General Leslie Rutledge filed a motion to intervene in a federal lawsuit against the EPA’s proposed 111(d) rule. That motion was granted in early March, allowing Arkansas to join West Virginia and the other 12 states in the case.

But on June 8, the D.C. court threw out the challenge, allowing the EPA to move forward with plans to draft final rules for the centerpiece of President Obama’s climate change policy that would cut carbon emissions at existing power plants across the U.S., including Arkansas’ coal-fired fleet.

“In effect, petitioners are asking us to review the legality of a proposed EPA rule so as to prevent EPA from issuing a final rule,” the federal appeals court ruling stated. “But as this Court has stated, a proposed EPA rule is not final agency action subject to judicial review.”

However, the court did leave the door open that it may take a look at the issue again, once the final rules are in place. “We may review final agency rules,” the court stated. “But we do not have authority to review proposed rules.”

Rutledge said she was disappointed in the D.C. court’s ruling, saying the EPA rule is still an “egregious overstep that will cost Arkansas jobs and the potential for economic growth.” The Arkansas AG also noted that the court ruling did not decide on the legality of the controversial ruling.

“The court indicates that the final rule is now imminent, and I stand ready to join attorneys general from across the country to protect our states,” she said.

Hutchinson told reporters Thursday that regardless of the court of appeals ruling, he still supports Rutledge’s effort to challenge the EPA’s authority, and added that the state is prepared for a protracted fight with federal environmental regulators.

“(This) will go on, but in the meantime it is important that we start to work on an implementation plan,” the governor said.

PSC Chair Ted Thomas told Talk Business & Politics that he and Arkansas Department of Environmental Quality (ADEQ) Director Becky Keogh have had conversations with Hutchinson concerning the EPA rule since comments were submitted to federal officials in December following several stakeholder meetings called by former Gov. Mike Beebe.

Although no consensus was reached during several panel meetings held over the summer, the ADEQ and PSC submitted a letter to the EPA on Nov. 26 that largely supported delaying the EPA proposed greenhouse gas regulations. Thomas said he expects the EPA final rules to land between Aug. 1 and Aug. 15. He said once a final EPA rule is issued in 2015 and it has been reviewed, the ADEQ and PSC will restart the meetings with stakeholder groups to develop a state implementation plan that would then be submitted to the EPA.

“But it is important for us to be able to maintain authority in Arkansas because if we don’t develop some type of plan that works for Arkansas, then we will be abdicating to the federal (government),” Hutchinson said.