WASHINGTON (CN) – Democratic attorneys general want U.S. Environmental Protection Agency chief Scott Pruitt to rescind guidance sent to states that said if the Obama administration’s Clean Power Plan takes effect, compliance deadlines would be extended.
In a letter released Thursday, the coalition representing 13 states and seven cities and counties demanded Pruitt retract a series of unsolicited letters he sent to state governors offering “legally incorrect” guidance which suggested that rules for the Clean Power Plan were unenforceable after a stay by the Supreme Court last February.
The August 30 correspondence was addressed to acting EPA general counsel Kevin Minoli.
The attorneys general specifically cited Pruitt’s submission of letters to 47 governors asserting that the Supreme Court’s stay of the Clean Power Plan in February 2016 meant that “under that precedent, states and other interested parties have neither been required nor expected to work towards meeting the [Clean Power Plan’s] compliance dates,” Pruitt wrote.
But that is simply not the case, the attorneys general said.
“We write to express our strong disagreement with the unsolicited legal advice that Scott Pruitt … provided to the Governors of 47 states in letters dated March 30, 2017… Although the letters do not purport to take final agency action, we are nonetheless concerned that because the EPA administrator authored the letters, states and power companies may mistakenly believe they can rely on Mr. Pruitt’s views,” the attorneys general wrote.
Until the EPA “lawfully replaces the Clean Power Plan, it remains law of the land, despite the current stay of compliance deadlines,” they said.
Since Pruitt’s letters were “premature,” “legally incorrect,” and “improper” in light of his agreement to recuse himself from litigation over the Clean Power Plan, the onus now falls to the EPA to retract the letters.
Pruitt has a long history of challenging EPA regulations. Before being confirmed as administrator, Pruitt sued the agency various times challenging the proposed and final versions of the Clean Power Plan.
But in February, the Supreme Court stayed the legislation pending further review by the D.C. Circuit Court. After an expedited briefing, an en banc panel left the decision pending.
On August 8, an order continued the case in abeyance, meaning the stay would remain in effect for a minimum of 60 days.
New York Attorney General Eric Schneiderman, who signed the letter to Minoli, is leading a coalition of cities and states which fought off legal challenges to the Clean Power Plan as it snaked through the D.C. Circuit.
In addition to Schneiderman, AGs and other chief legal representatives from New York City, California, Illinois, Delaware, Iowa, Maryland, Maine, Massachusetts, New Mexico, Rhode Island, Virginia, Oregon, Washington, Washington, D.C., Colorado, Florida and Pennsylvania signed off on the letter.
“The facts are clear. The EPA has a legal obligation to limit carbon pollution from its largest source: fossil fueled power plants. So, if President Trump wants to repeal the Clean Power Plan, he must replace it. Scott Pruitt cannot simply wish away the facts by giving Governors bad legal advice,” Schneiderman wrote.
The EPA indicated last year that the time to adjust compliance deadlines would be at the end of litigation but not before. In addition to this, Schneiderman emphasized two of the other major problems they found in Pruitt’s message to governors. First, there’s no legal support for an extension of regulatory deadlines through a letter composed by an EPA administrator and second, there’s no possible way to extend compliance deadlines for every day that litigation remains pending.
“The Supreme Court order is silent on this issue, despite the fact that at least one of the stay applicants, Basin Electric Power, explicitly requested such relief,” the attorneys general wrote.
The EPA did not immediately respond to a request for comment.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
