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WV Attorney General Morrisey says EPA broke its own rules with carbon dioxide emission regulations

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West Virginia Attorney General Patrick Morrisey says the U.S. Environmental Protection Agency isn't following its own rules.

In a letter to EPA Administrator Gina McCarthy outlining his continued objections to the EPA's plan to regulate carbon dioxide emissions from existing and modified power plants, Morrisey pointed out the agency had failed to include “required and critical information in the regulatory dockets of two recent proposed rules: one relating to carbon dioxide emissions from existing sources, and one relating to carbon dioxide emissions for modified sources.”

He said that, because EPA did not include in the dockets key materials on which the agency relies as support for its Proposed Rules, it violated Section 307(d) of the Clean Air Act and “As such, the rules must be withdrawn.”

The letter was co-signed by attorneys general from 12 other states — Alabama, Indiana, Kansas, Louisiana, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota and Wyoming.

“... The missing information unquestionably constitutes 'data, information and documents,' and likely contains 'policy considerations underlying the proposed rule' that should have been in the rulemaking dockets from the beginning,” Morrisey wrote. “Deprived of this missing information, the notices of propose rulemaking published on June 18 ‘fail[ed] to provide an accurate picture of the reasoning that has led [EPA] to the proposed rule.' This is particularly problematic where, as here, the proposals seek to overhaul the existing electric generating sector on an unprecedented scale.

Morrisey called it a “blatant example” of EPA's disregard for the rule of law.

“The public has a clear right to know how EPA reached its conclusions,” Morrisey said. “It is abundantly clear that EPA and the Obama Administration will not allow anything to get in the way of enacting these illegal, burdensome regulations on coal-fired power plants.”

He said Section 307(d) of the Clean Air Act explicitly requires that all data, information, and documents used to create proposed rules to be made available to the public at the time of proposal to allow for meaningful comment. Finalizing a rule without providing parties with the technical information needed for meaningful comment renders the proposed rules unlawful, he said.

The law “reflect(s) Congress's judgment that information on which a proposed rule is based must be made available to the public at the time of proposal to ensure meaningful comment and sound rulemaking,” he wrote.

The letter provides three specific examples in which EPA violates Section 307, and in light of those violations, it asks the agency to withdraw both the Existing Source Rule and Modified Sources rule immediately. Alternatively, it asks that EPA publish the missing data immediately and extend the comment period 120 days from the date of such publication.

“Our office will not ignore the repeated violations of process and law that this agency is using to force its rules for carbon emissions on the states,” Morrisey said. “We will continue to use every tool available to fight for coal miners and the jobs that the coal industry supports.”

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