The two state Attorneys General who led the fight in the lawsuit against President Obama’s Clean Power Plan (CPP) are now saying states should not waste any more taxpayer resources on developing a state CPP plan.
The Supreme Court issued a stay of the CPP two weeks ago — meaning that implementation of the rule by the federal government will be blocked while it’s being challenged in court. Even if the lawsuit failed, the legal challenges it has triggered will likely not be completed before Obama leaves office; that means that a very different President — such as a conservative Republican — could be in office when implementation restarts. Plaintiffs in this lawsuit consists of various industry groups, energy producers, and a bipartisan group of 29 states (including Arkansas).
The stay leaves the states with a choice: continue using taxpayer resources on a state plan for CPP that has been stayed — and that very well could be ruled unconstitutional — or pause all use of state taxpayer resources for developing a plan until the courts rule on its constitutionality.
The Obama administration would like the states to continue using taxpayer resources to develop a plan. Ken Paxton, Texas Attorney General, and Patrick Morrisey, West Virginia Attorney General, both say states should stop using state resources to develop a plan until the judicial review process is finished.
From Paxton and Morrisey:
As the chief legal officers for two States involved in obtaining the stay, we want to ensure that States understand that there is no legal obligation to continue to spend taxpayer funds on compliance efforts and that, in the unlikely event the Power Plan is ultimately upheld by the courts more than a year from now, there will be ample time then to restart those efforts. The result of the stay is clear: the Power Plan has no legal effect whatsoever during the entire judicial review process. In granting the stay, the Supreme Court considered whether the Power Plan is likely unlawful and whether it is causing irreparable harm now. We believe the Court’s decision to grant the stay for the duration of the litigation—including any Supreme Court review—means that the States, their agencies, and EPA should put their pencils down. Any taxpayers dollars spent during the judicial review process are unnecessary and likely to be entirely wasted.
Arkansas Attorney General Leslie Rutledge is a plaintiff in Paxton and Morrisey’s lawsuit against the federal government’s CPP. I asked her office if they were advising state officials to discontinue state plan development, but her spokesman said he couldn’t comment due to the ongoing litigation.
I also asked the Arkansas Department of Environmental Quality (ADEQ), the state agency charged with developing a state CPP, if they were still using taxpayer resources to develop a plan despite the recent Supreme Court stay.
A spokeswoman said:
We are keeping in close contact with our stakeholders and anticipate providing further information regarding the state’s actions in the near future.
With the CPP expected to raise the energy costs of average Arkansans, state officials shouldn’t go out of their way to implement the plan when the law has been stayed by the Supreme Court.
I guess it all comes down to whether you trust the legal advice of the Obama administration over conservative Attorneys General Ken Paxton and Patrick Morrisey.