New regulations to slash emissions from coal-fired power plants took effect Friday, appearing in a list of fresh federal rules.
Within hours, Montana joined 23 other states in a lawsuit asking the U.S. Court of Appeals for the District of Columbia Circuit to halt implementation and ultimately overturn the rule known as the U.S. Environmental Protection Agency’s Clean Power Plan.
"Agencies simply don't have the authority to make up new laws," Attorney General Tim Fox said.
At a press event to announce the suit, both he and U.S. Sen. Steve Daines, R-Mont., condemned the rule for forcing states to restructure how electricity is produced and the potential for bills to spike, particularly in Montana, where about half the state's power comes from burning coal. Yet Fox repeatedly emphasized that his office was not judging whether the federal plan was smart policy, just whether EPA had such authority.
Attorneys general from 15 other states, primarily liberal strongholds like New York, and health or environmental groups such as the American Lung Association have said that they would intervene to support the EPA's plan.
Anne Hedges, lead lobbyist of the Montana Environmental Information Center, was unsurprised by Fox’s filing, but did not worry that the signature piece of President Barack Obama’s climate change plan would be dismantled in court.
“(Fox's filing) is predictable and it’s doomed for failure,” she said. “It’s just political posturing, and it’d be much better to have a solutions-oriented path forward than one based on trying to tie this up in litigation with an inevitable outcome of failure.”
This summer, the EPA released its final version of the plan, setting targets for each state to cut greenhouse gas emissions from coal-fired power plants for a nationwide reduction of 32 percent of 2005 levels by 2030. Political strategists have said implementation of the rule gives the president credibility to push for other countries to further cut their emissions during the Paris Climate Conference this December.
The carbon rule drew considerable pushback from mostly Republican leaders of coal-country states, who filed multiple lawsuits that failed to halt the plan from taking effect. The court had ruled they could not sue until the rules became official.
The suit Montana joined Friday echoes earlier filings, arguing the EPA overstepped its authority under the Clean Air Act, the reductions in coal emissions would cause power bills to increase and that deadlines for cutting emissions were too aggressive.
Some states, such as Wyoming, have filed additional suits to address issues specific to their situations, a possibility Fox said his office had considered and not yet ruled out.
The final version of the federal plan set steeper goals for Montana than originally drafted, leading Gov. Steve Bullock to say at the time that he was “extremely disappointed” with the shift while still acknowledging the importance of addressing climate change.
In 2012, carbon dioxide emissions from coal were emitted in Montana at a rate of 2,481 pounds per megawatt-hour of electricity generated. Unless the federal rules are overturned, the state must to cut that nearly in half to 1,305 pounds per megawatt-hour.
No other state has to reduce its emissions rate as fast as Montana under the plan, although all power plants are held to the same standards. In large part, this is because the coal-fired plant in Colstrip, built during the ’70s and ’80s, is the second largest in the nation and produces energy for utilities in several northwestern states.
The gap between Montana and states such as Idaho, which only has to cut emissions by 7.6 percent, also is because Montana has been slower to diversify its energy sources and to use alternatives like wind power, Hedges said.
“It’s not that Montana is treated less fairly,” she said. “Ultimately, we’re just behind where the rest of the country is."
Claudia Rapkoch, spokeswoman for NorthWestern Energy, said the federal rules don’t give Montana enough credit for renewable energy progress already made. She noted that more than 60 percent of the utility’s electricity in Montana comes from wind or water sources. Even though only a quarter of the company’s power comes from coal, she said the structure of transmission lines in the state are dependent on the reliable production from Colstrip and it would be costly to rebuild a system around variable sources like wind.
“We’re proud of our portfolio. And we’re proud we own part of Colstrip Unit 4,” she said.
Rapkoch said NorthWestern Energy is still studying how the rule could affect rates. The American Coalition for Clean Coal Electricity has estimated Montanans could see their rates increase 20 percent by 2029.
While Fox seeks to halt the carbon rule, the state has started to study options for meeting the federal target. The Clean Power Plan requires states to file a compliance strategy by September 2016 — although states can apply for an extension and submit only a preliminary report — or they must adopt the EPA's plan instead of a local solution.
Bullock took a pragmatic tone on the carbon rule Friday, focusing on compliance rather than speaking to whether he supported Fox’s lawsuit.
“Montana faces a choice: we can write our own plan or the federal government will write it for us,” he said in a written statement. “I want to ensure that Montana remains in the driver’s seat on our energy and environmental policy, and am going to ask Montanans to roll up their sleeves and work to address this challenge.”
State Sen. Duane Ankney, R-Colstrip, said the EPA’s less stringent first version of the rule was workable, but the one that took effect Friday “leaves no wiggle room” for the interim subcommittee tasked with helping state agencies create a plan.
“I mean, the only way you can comply with that is to shut these plants down,” he said, speculating on the tough task ahead. “And then where will the electricity come from?”
U.S. Rep. Ryan Zinke, R-Mont., said in a statement that the rules threaten hundreds of jobs in Colstrip and thousands more tied indirectly to the plant.
“If the EPA plan is enacted, their jobs are dead,” the statement said.
Friday also was the first day federal lawmakers could file resolutions to overturn at least part of the Clean Power Plan under the Congressional Review Act, which they are expected to do Monday.
“We’re working on parallel paths,” Daines said of the challenges in court and Congress. “The lawsuit is an important step for states, states across the country fighting back against President Obama’s power grab.”