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Decision in Kentucky and Other States' Lawsuit Over EPA Carbon Regulations Could Be Imminent

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A lawsuit filed by Kentucky and several other states challenging the Environmental Protection Agency’s Clean Power Plan could be decided “any day now.”

Chief Deputy Attorney General Sean Riley briefed a legislative committee on the lawsuit Thursday.

The lawsuit argues that with the Clean Power Plan, the EPA is exceeding its authority under the law. The law—expected to be finalized this summer—will set state-specific goals for carbon dioxide reductions.

Riley said the three judge panel hearing the oral arguments in April seemed to agree with the states on the technical merits of their argument: that the sections of the Clean Air Act the EPA is using to regulate carbon dioxide are inappropriate.

“They were very receptive to the substantive argument that the EPA may have precluded its ability to regulate greenhouse gases under [section] 111d by operation of regulating them under [section] 112,” he said. “However, they did voice some skepticism about whether the timing of our lawsuit was procedurally proper.”

Riley said the court decision could stop the EPA from finalizing the rule later this summer. Or, if the judges rule against the states, it could kick off more litigation.

“If, on the other hand, the D.C. Circuit allows the EPA to proceed, this same group of states and perhaps more will be assessing how best to best to proceed and challenge what will then become the final rule.”

The status of this lawsuit is one that’s being closely watched in many states. Bloomberg reported last month that of the 50 states, only Oklahoma is refusing to begin work on an individual state plan to comply with the regulations.

Under Gov. Steve Beshear, the Kentucky Energy and Environment Cabinet has already begun work on a state plan, and Secretary Len Peters made the case to the committee on Thursday that the plan is in the best interest of Kentucky. If the commonwealth doesn’t submit a state plan, the EPA will regulate utilities under a blanket federal plan, which Peters said would probably not be in the best interest of the state.

What nobody explicitly mentioned in the committee meeting was that the state’s own numberssuggest that Kentucky will comply with the Clean Power Plan with minimal effort. Because about 24 percent of the state’s coal-fired capacity has already shut down or will retire next year, the state is on track to meet the carbon dioxide limits the EPA is expected to propose. And that doesn’t count another good chunk of the state’s coal-fired fleet that will be more than 60 years old and expected to retire in 2030 or 2040.

Erica Peterson is WFPL's Director of News and Programming.