Wisconsin joins second lawsuit against Clean Power Plan

Wisconsin Attorney General Brad Schimel has joined 23 other states filing suit against the Environmental Protection Agency’s (EPA) Clean Power Plan.[1] This lawsuit is in addition to the suit Wisconsin joined late last month[2] over the plan. This new suit concerns the EPA’s authority to set carbon emission limits for newly constructed power plants (referred to as 111(b)), whereas the suit last month concerns the EPA’s ability to set carbon emission limits for existing power plants (referred to as 111(d)).

In a press release,[3] Schimel’s DOJ expressed concerns that a main stay of the rule, the requirement for new coal-fired power plants use carbon capture and sequestration technology, has not been “adequately demonstrated” as required by the Clean Air Act.[4] The Wisconsin Department of Justice contends that Wisconsin does not have the geological makeup to store large amounts of carbon emissions underground. Therefore Wisconsin will have to transport the carbon to another state for storage, which would make the construction of any new plants cost-prohibitive. Furthermore the DOJ stated, “the technology is not only costly, but unproven.” The press release cites the Kemper County Energy Facility, a Mississippi power plant that is meant to demonstrate carbon capture and sequestration technology. This facility has been described as “over budget” and “over deadline” by the media.[5] They argue that because the test facility has not yet shown carbon capture and sequestration is feasible the technology cannot be “adequately demonstrated” under the Clean Air Act and the requirement it be used should fail.

In addition to concerns about EPA’s authority for promulgating and feasibility of implementing the 111(b) standards, Wisconsin is challenging the standards because the Clean Air Act requires the EPA to set limits on new power plants before it can set limits on existing plants (111(d)). Therefore if the challenge against the 111(b) provisions succeeds, EPA cannot enforce the sections of the Clean Power Plan that rely on 111(d).

The other states that have joined Wisconsin in the suit are Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.