Circuit Court Rules in Favor of New Chester Dairy!

[While this post is a little late] Christmas came early for the Great Lakes Legal Foundation this year when, on December 2nd, Judge Mark McGinnis of the Outagamie Circuit Court released his decision in favor of New Chester Dairy and Intervenors, in New Chester Dairy v. DNR, holding DNR does not have authority to impose monitoring conditions on high capacity well permits without explicit authority to do so. This is good news for all those who believe in the rule of law.

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Posted in General

Overview of States’ Motion for Stay Against Clean Power Plan

The state petitioners’ filed a motion for a stay in their lawsuit against the 111(d) portion of the Environmental Protection Agency’s (EPA) Clean Power Plan (Plan) on October 23, 2015. This post is mean to outline the positions taken in that brief.  Prior to detailing their argument, the petitioners provide a statutory overview of the relevant authority, or lack thereof, behind the Plan and an overview of the final plan. As there are multiple overviews of the Plan on this website and elsewhere on the Internet it will not be further elaborated on here.

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Wisconsin joins second lawsuit against Clean Power Plan

Wisconsin Attorney General Brad Schimel has joined 23 other states filing suit against the Environmental Protection Agency’s (EPA) Clean Power Plan.[1] This lawsuit is in addition to the suit Wisconsin joined late last month[2] over the plan. This new suit concerns the EPA’s authority to set carbon emission limits for newly constructed power plants (referred to as 111(b)), whereas the suit last month concerns the EPA’s ability to set carbon emission limits for existing power plants (referred to as 111(d)).

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Posted in General

EPA publishes Clean Power Plan in Federal Register; States sue

A coalition of 24 states filed a lawsuit on Friday challenging the Obama Administration’s signature environmental regulation, the Clean Power Plan, in response to the regulation being published in the Federal Register on Friday.

West Virginia Attorney General Patrick Morrisey is leading the litigation against the plan which he has called, “the single most onerous and illegal regulations that we’ve seen coming out of D.C. in a long time.”

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Posted in Clean Air Act

Federal Court stays Waters of U.S. Rule nationwide – decision may soon be overturned

The U.S. Court of Appeals for the Sixth Circuit, in a 2-1 decision, stayed the implementation of the “Clean Water Rule” (Waters of U.S. Rule) nationwide finding that the petitioners have a substantial likelihood of success to win the case. However, the court may also overturn itself in just a few weeks as it has yet to decide whether it has jurisdiction to hear the case. Without jurisdiction the court cannot stay the implementation of the rule pending completion of its review of the rule on the merits.

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Posted in Clean Water Act

Federal Judge in North Dakota clarifies that injunction against Waters of US rule limited to 13 states


U.S. District Judge Ralph Erickson clarified that the preliminary injunction he issued last week against the implementation of the Obama Administration’s Wasters of the U.S. rule only applies to the 13 states (including Wisconsin) that sued to block the rule, not nationwide.

Expanding on his earlier ruling, Judge Erickson wrote, “[b]ecause there are competing sovereign interests and competing judicial rulings, the court declines to extend the preliminary injunction at issue beyond the entities actually before it.”

Posted in Environmental Protection Agency, Water

Update: AG Schimel challenges EPA’s decision to partially enforce enjoined Waters of U.S. Rule

Brad Schimel has declared that his office will challenge the EPA’s decision to move forward enforcing the enjoined Waters of the U.S. rule in 37 states.  On Thursday, August 27, the U.S. District Court for the District of North Dakota enjoined the Rule from taking effect. The District courts for the Southern District of Georgia and the West Virginia declined to enjoin the Rule.

Brad Schimel stated “[t]here is well-established precedent that the federal court’s order yesterday enjoined the rule applies to all 50 states, not just the 13 states involved in that case.  We expect Wisconsin and the other states challenging the rule to seek clarification that the injunction issued by the district court in North Dakota applies nationwide.”

Posted in Clean Water Act

Waters of US rule enjoined

A federal judge in North Dakota granted a preliminary injunction blocking the EPA from enforcing the infamous Waters of the United States rule. District Court Judge Ralph Erickson found that the 13 states who motioned for the injunction would be harmed if the courts did not act and that the states are likely to succeed based on the merits of the case. He called the rule “exceptionally expansive” and stated that the rule will “irreparably diminish the states’ power over their waters.”

However, late on Thursday, the Obama Administration announced that it would largely enforce the regulation as planned stating that the judge’s decision only applied to the 13 states that were parties to the suit, not all 50 states. On Friday the EPA announced they were enforcing the rule in the other 37 states not a party to the lawsuit.

Posted in General

EPA Clean Power Rule will hit Wisconsin, and Midwest, hard

The Obama Administration’s mandate to cut carbon emissions will leave Wisconsin’s power grid at risk according to Ellen Nowak, the chairwoman of Wisconsin’s Public Service Commission, the state’s utility regulator.

Wisconsin, and other Midwestern states, rely heavily on coal due to its affordability and reliability. Wisconsin will have to make the sixth largest cut to their carbon emissions in the nation.

It isn’t as simple for utility companies to shutter older, more carbon polluting, coal plants and build new plants using alternative fuels such as natural gas, wind, and solar. Multiple steps are necessary to shutter plants including gaining approval from an organization that monitors the reliability of the Midwest’s power grid.

The DNR and PSC estimated that compliance with the draft rule would cost the state $3.3 billon to $13.4 billion. With the final rule’s more aggressive mandates the cost of compliance is likely to increase. Higher energy prices for consumers are also expected.

Posted in General

EPA Releases Final Draft of Clean Power Plan

Last week the White House and Environmental Protection Agency (EPA) released the final version of the Clean Power Plan rule, which regulates carbon dioxide emissions, and various pollutants, by power plants in the United States. As widely expected, the final draft of the rule is stricter than the proposed regulation released last year. The compliance timeline has been extended for states in order for them to meet the stricter standards.

Specifically the final version of the rule’s national standard requires states to cut 32 percent of their carbon emissions based on levels recorded in 2005. The proposed rule required a 30 percent reduction. The rule’s renewable energy standard also increased with the EPA excepting renewable energy to rise to 28 percent of the electrical grid’s capacity by 2030. The proposed rule had expected renewable energy to comprise 22 percent of the grid’s capacity. The use of coal is also expected to drop to 27 percent of the grid’s energy creation instead of 31 percent (currently coal makes up 39 percent of energy production and creates 77 percent of CO2 emissions nationally). However, states have a longer window to begin complying with the standards. The first compliance date has been extended from 2020 to 2022. The EPA claims these standards will save approximately $45 billion a year through shrinking energy use, reducing health care costs related to asthma, lung cancer and other respiratory illnesses caused by air pollution.

Every state is required to submit a plan to the EPA of how they will meet the rule’s emission goals. State preliminary plans are due in September of 2016 but a state can request a two year extension. The EPA is encouraging interstate cap-and-trade exchanges by offering to help implement regional exchanges by tracking emissions and carbon credits. Statewide limits were set by the EPA to further facilitate the use of a cap-and-trade style system if states so choose.

Particularly relevant to Wisconsin is how the rule treats non-domestically produced hydroelectric power which Wisconsin heavily relies on as a source of renewable energy. States that adopt a rate-based target (lbs/MWh) can get credit for generation from Canadian clean energy facilities when: the resources are incremental and installed after 2012; all measurement and verification standards are met; the country generating the credits is connected to the U.S. grid; and there is a power purchase agreement or other contract for delivery of the power with an entity in the U.S.

Also relevant, Wisconsin’s interim targets are now less stringent but its 2030 goal was tightened: in the Final Rule the 2022-2029 target is 1,364 CO2 lbs/net MWh (less stringent than 2014 draft target of 1,281 CO2 lbs/net MWh) but the Final Rule 2030 Target is more stringent: 1,176 CO2 lbs/net MWh (compared to 2014 2030 target of 1,203 lbs/MWh).

Posted in Environmental Protection Agency