Citing ‘Out-of-Control EPA,’ Rokita Joins Petition to Limit Clean Air Oversight

Backed by fossil fuel industry groups, states ask U.S. Supreme Court to review EPA’s power to decarbonize energy industry.
June 8, 2021

The Hoosier State is fighting the Biden administration’s efforts to decarbonize power generation by questioning whether the federal government has been granted that power by Congress.

Indiana Attorney General Todd Rokita joined the attorneys general of 18 other fossil fuel-dependent states in filing a petition asking the U.S. Supreme Court to review the limits of the U.S. Environmental Protection Agency’s power to regulate environmental issues.

“I am taking action to protect Hoosiers from an out-of-control EPA. These ideological activists, and the groups that act in concert with them, ultimately are bent on destroying capitalism and our way of life,” Rokita told the Indiana Environmental Reporter in a written statement. “No one should deny the need and priority to conserve our precious God-given resources, but it is foolish to placate such arbitrary and harsh parameters, and the consequences of adopting such measures, based on the ideological whims of subjective zealots.”

The basis of the petition is a January 2021 ruling by the U.S. Court of Appeals for the District of Columbia Circuit that upheld the repeal of the Trump administration’s polluter-friendly Affordable Clean Energy Rule.

The ACE Rule gave states power to enforce federal standards for coal-fired power plant emissions, in place of often-stricter state standards. It also fully repealed the Obama-era Clean Power Plan, a rule that would have tightly regulated emissions of carbon dioxide and other pollutants but was cast into legal limbo by the Supreme Court after several states, including Indiana, sued to stop its implementation.

The attorneys general involved in the petition said the appeals court’s decision was “wrong” and has “massive consequences” for the electrical sector.

The case at the center of the petition led to the repeal of the ACE Rule on the final full day of the Trump administration.

“EPA now has a judicial edict not to limit itself to measures that can be successfully implemented at and for individual facilities. It can set standards on a regional or even national level, forcing dramatic changes in how and where electricity is produced, as well as transforming any other sector of the economy where stationary sources emit greenhouse gases,” the suit states. “Power to regulate factories, hospitals, hotels and even homes would have tremendous costs and consequences for all Americans; EPA’s steps on remand and every regulation under the statute to follow will be shaped by this new and wildly expansive authority.”

The petition is supported by coal industry trade organizations like the National Mining Association; America’s Power, which represents Alliance Resource Partners LP, the owners of coal mines and operations in Gibson and Mount Vernon; and Basin Electric Power Cooperative, the Great Plains branch of the Touchstone Energy Cooperatives, a federation of more than 750 electric cooperatives, 40 of which are located in Indiana.

The Supreme Court chooses to hear only a small percentage of cases submitted, averaging about 2% every year. If the case is selected, the court’s decisions could have wide-ranging effects for the state of Indiana, which relies almost exclusively on regulations set by the federal government to limit emissions from coal and other fossil fuel plants.

Burning coal releases harmful gases and particles, like sulfur dioxide and nitrogen oxides, which can affect the respiratory system and cause other health problems.

Those and other emissions are regulated by the EPA, which is empowered by the Clean Air Act to set National Ambient Air Quality Standards. The standards establish the maximum amount of a pollutant that can be emitted into the air by facilities like power plants before it is considered to be harmful to human health and the environment.

NAAQS and other federal environmental regulations are enforced in states primarily by a state’s environmental agency, like the Indiana Department of Environmental Management.

Under the Clean Air Act, states are also allowed to set their own air quality standards that are stricter than federal requirements.

The Indiana Legislature in 2016 voted to enact a “No More Stringent Than” regulation that, among other things, prevents the enforcement of any environmental regulations in the state that are more stringent than federal laws.

The law essentially made the state dependent on the federal government to set the bar for pollutants allowed to enter the environment.

Burning coal also releases carbon dioxide, one of several greenhouse gases that trap heat in the atmosphere and alters the earth’s climate over time.

The Supreme Court ruled in 2007 that the language of the Clean Air Act gave EPA the authority to regulate greenhouse gases as air pollutants

“Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do,” Justice John Paul Stevens wrote in the case’s majority opinion. “To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design.”

That authority was refined in 2014, when the Court found that the EPA could regulate greenhouse gas emissions from large sources as long as they were already being regulated for conventional pollutants.

Despite having the authority, two separate and disparate EPA efforts to regulate greenhouse gas emissions, the Clean Power Plan and the ACE Rule, have fallen to legal challenges.

There is currently no federal rule limiting climate pollution from power plants, meaning the emission of greenhouse gases in Indiana is currently unregulated.

According to the EPA, burning coal for power resulted in 60.5 million metric tons of carbon dioxide equivalent emissions in Indiana in 2019. A vast majority of those emissions, 59.4 million metric tons, came from only 13 coal-fired power plants located throughout the state.

Carbon dioxide emissions rates have fallen about 43% over the last decade, mostly due to the retirement of coal-fired power plants.

Coal-fired electricity generation fell to a 42-year low nationwide in 2019, and in 2020 less electricity was generated by coal than by nuclear generation and natural gas.

Despite the national downward trend, the 19th-century fuel source remains an important part of Indiana’s energy situation.

According to the most recent data from the U.S. Energy Information Administration, Indiana ranks seventh in the nation for coal production.

A vast majority of the electricity generated in the state comes from coal-fired power plants, and coal continues to be one of the top two forms of energy consumed in the state, second only to natural gas, a fossil fuel that emits methane. Methane is a greenhouse gas 25 times more potent at trapping heat than carbon dioxide.

Renewable energy is making inroads in the state. Wind energy supplied 6% of the state’s total electricity generation in 2019, a 14% increase over 2018.

Incorporating more wind and solar power into the state’s electrical grid would take “transformational change” to overtake fossil fuels as the most transmitted source of energy in Indiana, according to the Midcontinent Independent System Operator, which oversees the electrical grid for Indiana and 14 other states.

Lobbyists and lawmakers in Indiana have worked to stunt the state’s transition away from fossil fuels with industry-friendly legislation.

In the past two years, the Indiana Legislature has passed laws that make it harder to close coal-fired power plants, taken away the power of local governments to restrict fossil fuel use and enact other climate change reduction policies, established a potentially more lenient state coal ash permitting program and enacted other fossil fuel-friendly legislation.

The Legislature also defeated bills that would have set statewide siting standards for renewable energy systems and protected water sources from coal ash contamination.

Rokita’s current petition is part of a series of fossil-fuel friendly interventions by the Indiana Attorney General’s office.

In March, Rokita enlisted the state of Indiana to fight the Biden administration over an executive order that reintroduced a method for calculating the social cost of greenhouse gases in cost-benefit analyses for federal regulations.

Rokita’s predecessor, former Indiana Attorney General Curtis Hill, filed a brief along with 12 other attorneys general in support of 21 domestic and international energy companies that argued public nuisance laws should not be used to sue fossil fuel companies for climate change effects.

Hill also filed a motion in support of the ACE Rule in the same lawsuit Rokita hopes to get the Supreme Court to review.

The Biden administration has until July 6 to file a response to the petition.

Citing ‘Out-of-Control EPA,’ Rokita Joins Petition to Limit Clean Air Oversight