AG Kaul’s Climate Change Suit

On August 13, Wisconsin Attorney General Josh Kaul announced Wisconsin would join 22 states and 7 local governments suing the federal Environmental Protection Agency (EPA) over a rule implementing the Clean Air Act. The new rule—called the Affordable Clean Energy Rule (ACE)—creates emissions guidelines for states establishing carbon dioxide limits on coal-fired power plants. This would allow states more leeway in how, or even if, they regulate emissions. The rule also repeals the previous administration’s controversial Clean Power Plan (CPP). The CPP, issued in 2015, immediately garnered legal opposition and resulted in the U.S. Supreme Court staying its implementation in 2016.

The lawsuit against ACE (otherwise dubbed by opponents as the “Dirty Power Rule”) argues that the rule would not “meaningfully” reduce carbon dioxide emissions, thereby violating the EPA’s duty under the Clean Air Act. See the petition for review and attachment. According to the suing attorney generals, the EPA must implement the best available system of emission reduction possible and better systems than the one created by ACE exist, making it ineffective and unlawful.

But not all agree the lawsuit will prove effective or even wise. Many feel the new rule corrects unlawful overreach by the CPP. The EPA argues that anything more would fun afoul with the limits of the Clean Air Act. If the Supreme Court agrees, the decision could severely limit future efforts by the EPA to regulate carbon emissions.

Under Wisconsin law, AG Kaul can only join the lawsuit at the request of the governor or legislature. (See Wis. Stat. § 165.25(1m)). 2017 Wis. Act 369, which placed the AG office under greater legislative oversight, does not impact the AG’s ability to join the case. However, it could impact potential compromises or settlements.

Wisconsin joined the original lawsuit against the CPP under former AG Brad Schimel in 2016. AG Kaul withdrew Wisconsin from that lawsuit in April. Act 369 was temporarily stayed at the time.