Federal court halts Indiana challenge of power plant rules

WASHINGTON – A federal appeals court Tuesday put the brakes on a challenge by Indiana and 14 other states to pending federal regulations to curb greenhouse gas emissions from power plants.

But Gov. Mike Pence and other opponents of a centerpiece of the Obama administration's efforts to reduce pollution linked to global warming say they're not backing down.

"The court's decision is discouraging, but it does not dampen our resolve to use every legal means at our disposal to stop burdensome regulations," Pence said in a statement. "We will renew our claim and seek to invalidate the regulations once they are finalized later this summer."

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said the states and coal companies that sued the Environmental Protection Agency have to wait until the agency completes the proposal.

"Petitioners are champing at the bit to challenge EPA's anticipated rule restricting carbon dioxide emissions from existing power plants," Judge Brett Kavanaugh wrote. "They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule."

Since releasing a draft last June, the EPA has been reviewing millions of comments before finalizing the regulations.

Under the initial proposal, Indiana would have to reduce by 20 percent the amount of carbon dioxide generated per unit of electricity by 2030.

Indiana's power plants produce more carbon dioxide than plants in all but three other states.

Indiana Attorney General Greg Zoeller said Tuesday he will review the federal appeals court's ruling to determine the state's next steps.

"Whether EPA has exceeded the authority Congress granted it is a very important legal question that state governments needed to raise and that only the federal courts can answer," Zoeller said in a statement.

David Doniger, director of the Natural Resources Defense Council's climate and clean air program, predicted future challenges also will come up short.

"Climate change is a clear and present danger that we must tackle now with the Clean Power Plan, which puts the first limits ever on the dangerous carbon pollution from our largest source — our power plants," Doniger said.

"The Supreme Court has three times already upheld EPA's duty to tackle carbon pollution and climate change."

Indiana is among 11 states that have taken the strongest stance against the proposal, according to an analysis from the Brookings Institution that studied reactions from state environmental agencies to the EPA's proposed rule.

"There is every reason to expect that (those states) will pursue their criticisms in litigation and in some cases refuse to have their state environmental agencies participate in the rule's implementation process," Philip Wallach and Curtlyn Kramer wrote in their May report.

Even some states that have not been as vocal in their opposition have expressed concerns about the preliminary plan, suggesting the EPA faces "serious difficulties" in finalizing it, the analysts said.

The states that have sued argued the courts should intervene now because states have had to spend significant time and resources getting ready for what's coming.

But Kavanaugh said courts have never reviewed proposed rules, "notwithstanding the costs that parties may routinely incur in preparing for anticipated final rules."

"We see no persuasive reason to blaze a new trail here," he wrote.

Kavanaugh and the other two judges on the panel that rejected the challenge were appointed by Republican presidents.

The states argue that the EPA is ignoring a provision in the Clean Air Act prohibiting the agency from regulating a pollutant from a power plant if other types of pollutants from the plant are already being regulated.

Therefore, they argue, because the EPA is already restricting mercury and other hazardous emissions from power plants, the agency can't now restrict greenhouse gas emissions from the same plants.

The EPA says the restriction in the law is against regulating the same pollutant twice, not different pollutants from the same source.

Email Maureen Groppe at mgroppe@gannett.com. Follow her on Twitter: @mgroppe.