WASHINGTON – Four times in recent years, the federal government has proposed controls for power plants that spew pollution into the environment and contribute to global warming.
Four times, the state of Indiana has gone to court to fight them.
The state has been part of legal challenges to Environmental Protection Agency rules that would:
• Reduce the cross-state air pollution that makes it difficult for some states to meet clean air requirements.
• Limit emissions of mercury and other toxic pollutants.
• Regulate carbon dioxide emissions from power plants and other large stationary sources of greenhouse gas emissions.
And even before a much more significant rule on greenhouse gas emissions is finished next year, Indiana joined 11 other states this month in trying to block the EPA from completing the regulation.
"Indiana I would not put in the group of states that particularly have a high environmental consciousness," said Jim Barnes, a former EPA administrator in the Nixon and Reagan administrations who teaches at the Indiana University Maurer School of Law.
What Indiana does have, Barnes said, is some coal mining, an electrical utility industry that relies heavily on coal and the history of having enjoyed for a while relatively low electricity rates because of that. Add to that conservative leaders who are leery of the federal government meddling in state affairs.
"So what they're looking to do is to try to keep the use of coal as available to the state as they can," Barnes said.
Coal has been a less expensive, but dirtier, means of making energy, which is why Indiana has ranked high among states on such lists as the amount of toxic pollution, such as mercury, coming from power plants. Mercury emissions, to which people are primarily exposed by eating contaminated fish, can cause neurological defects and other problems in very low concentrations. Indiana has issued warnings throughout the state about the dangers of eating fish caught in Indiana.
"The great irony is that while the (Gov. Mike Pence) administration lambasts these policies, they disproportionately benefit Indiana in terms of improved health," said Jesse Kharbanda, executive director of the Hoosier Environmental Council.
Indiana Attorney General Greg Zoeller said it's not his role to weigh the costs of complying with a federal regulation against the benefits to public health and the environment when deciding whether to challenge a rule.
"The governor and others have policy views," Zoeller said. "Ours is a legal question about administrative authority."
And the EPA, Zoeller argues, has been overstepping its authority in issuing regulations that go beyond what they've been empowered by Congress to do through the Clean Air Act. The basic structure of the law was passed in 1970 but has been updated several times.
"In each case, it's not that we necessarily win or lose, but I think it's appropriate that we challenge because EPA has been fairly aggressive in pressing beyond what at least a lot of members of Congress thought they were passing," Zoeller said.
The Supreme Court did agree in June the EPA went too far in setting rules for greenhouse gas emissions from power plants, manufacturing facilities and other stationary sources of carbon dioxide emissions. The court said the EPA can only regulate the sources that already are being controlled for other pollutants. Although that means the largest sources of greenhouse emissions still can be regulated, opponents said the ruling shows the courts won't give carte blanche to the EPA.
"It did say that they had overstepped," Zoeller said. "Whether it's by a little or a lot, we need to define what the lines of authority are."
But the Supreme Court upheld earlier in the year the EPA rule to reduce air pollution that crosses state lines. And a D.C. Circuit Court of Appeals panel upheld the EPA rule limiting toxic emissions. (That decision has been appealed to the Supreme Court, which could reject the appeal or take it up in their next session.)
"Everyone agrees that states and others have a right to challenge federal acts and make sure they're lawful," said Sean Donahue, a Washington, D.C., attorney who has represented environmental groups in defending the EPA rules. "But that doesn't mean that any and every lawsuit is a good idea, or is well founded, or legitimate."
For example, Donahue said, the newest lawsuit against the EPA greenhouse gas rule that hasn't been finalized is more about "playing to constituencies" since it's "pretty settled administrative law that you almost always have to wait until there's a final rule to challenge it."
Under the proposed rule, states would have to reduce the amount of carbon dioxide emitted per amount of electricity generated. The greenhouse gas rule that the Supreme Court upheld in June, by contrast, dealt with the EPA's ability to regulate carbon dioxide emissions when issuing construction or expansion permits for major sources of air pollution.
Zoeller said the challenge to the proposed rule is legitimate because Congress specifically considered, and then did not act on, setting a national cap on greenhouse gas emissions.
Barnes, however, agrees with Donahue that "a lot of this is for political consumption."
"In part, some of these suits are aimed at audiences in the state with the attorneys general trying to argue to people that, 'Look, we're trying to protect the coal mining and low utility costs here and trying to stop those folks at EPA who are getting off the reservation, that are listening too much to environmentalists," Barnes said.
Pence has said the state will "use every legal means at our disposal" to stop the pending greenhouse gas regulations which, he said, will harm Indiana ratepayers. Costs that utilities could pass on to ratepayers include having to retire a coal-fired power plant earlier than planned, upgrading a plant to make it run more efficiently and implementing energy-efficiency programs to make buildings and appliances use less energy.
Still, the EPA estimates in the long run these costs to ratepayers largely will be offset by savings from improved energy efficiency in the region that includes Indiana.
Ed Simcox, president of the Indiana Energy Association, which represents the investor-owned utilities, said his group generally has agreed the state's challenges to power plant rules have been in the best interest of the state. But individual companies might have a different view on a particular rule.
For example, one power company might be in a better position to meet the rule so would be at a competitive disadvantage if others don't have to. Or a company might also object to the uncertainty that challenges bring when they're trying to plan long term.
"It depends on so many factors within each of the companies," Simcox said.
On the pending EPA rule on greenhouse gas regulations, Simcox said, companies still are assessing what it would mean for them, so the association has not taken a position on the challenge.
Even if the challenges are ultimately unsuccessful, they can have the effect of giving utilities more time to comply. For example, Indiana's utilities will have at least an additional three years to reduce sulfur dioxide and nitrogen oxide emissions under the cross-state air pollution rule that the Supreme Court upheld this year.
"From the perspective of the challengers, it bought more time and allowed for delayed compliance," Donahue said. "From the perspective of the agencies, and certainly the parties supporting the rule, it bought some harm to people through dirty air."
Kharbanda, with the Hoosier Environmental Council, said it's understandable elected officials would be concerned about how federal policies affect their states. But, he said, "there's a grandstanding way to deal with that and there's a constructive way to deal with that impact."
"The constructive way is to say our state decision makers have a responsibility to proactively help our citizens reduce their energy bills and we can do so through things that are within our control, such as enacting and expanding a statewide energy efficiency program," he said.
Zoeller said his purview is the authority that was given states by the Founding Fathers to serve as a check on the federal government.
"If you're frustrated at all with some of the problems in Washington, I think some of the answers aren't going to be found in Washington," Zoeller said. "It's really up to the states to provide the healthy check and balance that is meant to be part of our constitutional system."
Contact Maureen Groppe at email@example.com or @mgroppe on Twitter.
Status of challenges to recent EPA rules on power plant emissions
• Challenge to proposed rule for reducing greenhouse gas emissions from existing power plants: Indiana is one of 12 states which, along with one of the nation's largest coal companies, is suing to stop the EPA from finalizing a proposed rule to reduce carbon dioxide emissions from power plants. The challengers say the rule is illegal because the EPA can't regulate greenhouse gas emissions under the section of federal law being used when the plants are already being regulated under a different section of the law. The section of the law being challenged sets industry-wide standards while the other section deals with required permits for construction of major sources of air pollution.
• Regulating greenhouse gases from stationary sources like power plants and factories: The Supreme Court ruled 7-2 in June that the EPA can regulate greenhouse gas emissions from large power plants, refineries and other industrial facilities that are already required to get permits for other air pollutants when constructing or expanding facilties. The decision limited some of the EPA's original rule, but covers the facilities responsible for the most emissions. Indiana was among the 13 states that had challenged the regulation as "one of the most brazen power grabs ever attempted by an administrative agency." Fifteen states were on the other side.
• Reducing cross-state pollution: The Supreme Court ruled 6-2 in April to uphold a 2011 EPA rule to reduce air pollution that contributes to smog and soot in downwind states. Indiana was among the 15 states and utilities that unsuccessfully argued the rule exceeded federal authority and placed an unfair economic burden on some states. Nine states and five major cities had sided with the EPA. The D.C. Circuit Court of Appeals is now considering how the rule should proceed.
• Reducing toxic emissions from power plants: A split three-judge panel at the D.C. Circuit Court of Appeals upheld in April a 2011 EPA rule limiting toxic pollution from coal and oil-fired power plants. Nearly half the states, including Indiana, challenged the rule as too costly. The states, along with industry groups, have asked the U.S. Supreme Court to hear the case. Sixteen states have defended the EPA's rule. Power plants are supposed to comply with the new rule by March, but they can be granted an extension of up to two years.