AG Mark Herring Tells EPA to Retract Pruitt’s Erroneous and Inappropriate Clean Power Plan Guidance

RICHMOND (August 31, 2017)-Attorney General Mark R. Herring is part of a coalition of 20 states and localities requesting the Environmental Protection Agency retract its “legally incorrect” guidance to States regarding Clean Power Plan implementation. In March, EPA Administrator Scott Pruitt sent unsolicited letters to the Governors of 47 states making the unsubstantiated claim that the Supreme Court’s stay of the Clean Power Plan will extend the rule’s compliance deadlines. Herring and his colleagues believe the guidance was both legally erroneous and in violation of Administrator Scott Pruitt’s agreement to recuse himself from the Clean Power Plan litigation given his conflicts of interest.

“Climate change is a real and urgent threat to the health, safety, and economy of Virginia communities from the coast to the mountains,” said Attorney General Herring. “The Clean Power Plan is the most promising plan to mitigate the effects of climate change and enjoy the benefits of cleaner air and water, and until it is properly and lawfully replaced it remains the law. Administrator Pruitt can’t just instruct Virginia and other states to act like the Clean Power Plan doesn’t exist, and in light of his recusal on the matter, he should not be giving any legal advice on the CPP, especially incorrect advice.”

In a new letter sent to EPA Acting General Counsel Kevin Minoli, the coalition of states and localities makes clear that:

“until and unless EPA lawfully replaces the Clean Power Plan, it remains the law of the land, despite the current stay of its compliance deadlines. Because the [EPA’s] letters are both premature and legally incorrect, and also improper in light of Mr. Pruitt’s agreement to recuse himself from litigation over the Clean Power Plan, EPA should retract the letters.”

The AGs’ letter explains that there are two significant problems with Administrator Pruitt’s legal guidance to Governors:

As EPA itself said last year, the proper time to decide whether to adjust compliance deadlines is at the conclusion of the litigation, not before the case has even been decided. If the Trump Administration’s efforts to scuttle the Clean Power Plan fail, the Plan-and its deadlines-will be back in effect. The EPA itself found earlier this year that power plants are well on their way to meeting their compliance obligations.

“In addition to being legally erroneous, Mr. Pruitt’s opining in the letters on a particular issue concerning the Clean Power Plan litigation is inconsistent with his agreement not to participate in the litigation in light of his representation of Oklahoma in the case. Given his recognition in the May 4, 2017 ethics memorandum that his recusal for one year is appropriate to prevent “any appearance of impropriety,” the same underlying concern would apply to the letters, in which he seeks to persuade the Governors of his view of how a stay issued in the course of the litigation should affect parties’ future compliance responsibilities,” the coalition writes.

Click here to read the letter, which was signed by the Attorneys General or chief legal officers of California, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Virginia, Washington, the District of Columbia, Boulder (CO), Chicago (IL), New York City (NY), Philadelphia (PA), Broward County (FL), and South Miami (FL).

Attorney General Herring is part of the coalition of states, cities, and counties that intervened in defense of the Clean Power Plan against legal challenges in the D.C. Circuit Court of Appeals. The court heard oral argument en banc in September 2016 and has issued two temporary pauses in litigation – the most recent of which compelled the coalition to weigh in on Administrator Pruitt’s legal guidance.