Six generation and transmission cooperatives, supported by NRECA, are asking the U.S. Supreme Court to rule that the authority to limit greenhouse gas emissions from existing power plants rests with the states, not federal regulators.

The group made that point in an amicus brief filed Dec. 17 in support of the plaintiffs in West Virginia v. EPA. The case challenges whether the Clean Air Act allows the Environmental Protection Agency to impose emissions caps on electric generating units.

“Our position is that Congress gave the states, not EPA, authority to set standards for existing power plants with guidance from the federal agency,” said Ashley Slater, NRECA vice president of regulatory affairs. “EPA does not have the authority to require generation shifting like it did in the 2015 Clean Power Plan.”

The G&Ts joining the brief were South Texas Electric Cooperative, Buckeye Power, Associated Electric Cooperative, Arizona Electric Power Cooperative, East Kentucky Power Cooperative and Minnkota Power Cooperative. Oral argument in the case is set for Feb. 28, 2022.

The Obama administration’s Clean Power Plan set a series of ambitious deadlines for states to meet specific carbon dioxide reductions, with the EPA deciding the best way for each state to reach its CO2 targets. However, the rule was tied up in litigation and never took effect.

The Trump administration repealed the Clean Power Plan and replaced it with the Affordable Clean Energy rule, but that move also was halted by a federal court in Washington.

In 2021, coal, mining and utility interests appealed that decision to the Supreme Court, which agreed to hear the case.

In their brief, the G&Ts and NRECA made the following primary arguments:

• The Clean Air Act preserves states’ authority to set emissions standards for existing generating units within their borders and allows EPA to offer only guidelines.

• The Supreme Court’s “major questions doctrine” asserts that Congress must be specific when it assigns decisions of vast economic and political significance to a federal agency. Imposing emissions caps on electric generating units nationwide would be such an action.

• If allowed to stand, the lower court’s ruling unconstitutionally allows the federal government to “commandeer” state authority.