Bruce Mansfield coal-fired power plant in Shippingport, Pa., scheduled to close next month. Photo: Wikimedia

In yet another state- and locality-driven legal maneuver aimed at environmental protection, both New York State and New York City have asked to intervene in three federal cases in which coal mining companies and other industry interests are challenging the EPA's legal authority to regulate greenhouse gas emissions from existing power plants under section 111 of the Clean Air Act, according to city Law Department news release and a copy of the motion to intervene.

The state and city are part of a coalition of 30 states and local governments, led by New York Attorney General Letitia James, who together have filed the motion to intervene in the three lawsuits, according to the Law Department and the intervenor motion. The three lawsuits are part of a larger set of cases consolidated by, and pending before, the U.S. Court of Appeals for the District of Columbia Circuit.

The attempt by the coalition of states and localities to intervene on behalf of the Environmental Protection Agency is for a limited purpose, according to the intervenor motion. And the tactic itself appears to be unique for New York State and New York City, which have generally joined or launched lawsuits in recent years that have sought to fight Trump Administration attempts to ease environmental regulations put in place under President Barack Obama.

In this instance, the coalition is seeking to intervene in the suits "for the limited purpose of defending EPA's legal authority to regulate greenhouse gas emissions from existing power plants under section 111 of the [federal] Clean Air Act," the 28-page motion paper states.

Moreover, the coalition notes in the motion document that "recent actions taken by EPA call into question its commitment to robustly defend its statutory authority to regulate power plant greenhouse gas emissions."

"State and Municipal Intervenors have a compelling interest in preventing the adverse effects of global climate change on human health and the environment," the document also says.

The intervenor motion goes on to explain that the three cases "involve review of EPA's final action," or rule, "titled Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations, 84 Fed. Reg. 32,520 (July 8, 2019)."

"Although State and Municipal Intervenors vigorously dispute the lawfulness and reasonableness of many aspects of the Rule, they support EPA's conclusion that it has authority to regulate greenhouse gas emissions from existing fossil-fueled power plants under section 111 of the Act," the intervenor motion document notes.

"Many State and Municipal Intervenors have long sought to compel the use of, and to vindicate, EPA's legal authority in this regard," the motion also states. It then further explains that "industry petitioners in the cases in which movants seek to intervene have raised or will likely raise at least three specific challenges to EPA's authority," before next going on to list the raised or expected industry challenges.

An EPA spokesperson said in an email that the EPA does not comment on pending litigation.

The motion filing notes that the intervenors sought out the position of the plaintiffs in the three cases—brought by plaintiffs including Robinson Enterprises, Westmoreland Mining Holdings and The North American Coal Corp.—on the coalition's wish to intervene, and that in two cases petitioners' counsel took no position, while in the Robison Enterprises case, their counsel was opposed to the motion.

Theodore Hadzi-Antich, a senior attorney for the Center for the American Future, is a counsel to a petitioner or petitioners in the lawsuit in which Robison Enterprises is the first named petitioner. He could not be reached for comment Friday.

Mark DeLaquil, a Baker & Hostetler partner in Washington, D.C., is a counsel to petitioner Westmoreland Mining Holdings in one of the other three lawsuits. He could not be immediately reached for comment Friday.

Charles Wehland, a Jones Day partner in Chicago, is a counsel to petitioner North American Coal Corp. in one of the other three lawsuits, and he also could not be immediately reached for comment Friday.

In the city Law Department's news release issued Tuesday, acting corporation counsel Georgia Pestana, said, "The City of New York is proud to join states and cities across the country in rigorously defending EPA's lawful authority under the Clean Air Act to regulate the emission of greenhouse gases against baseless challenges brought by the fossil fuel industry."

The Law Department also noted in the release that the motion to intervene in the three coal mining company cases is "separate and distinct from a lawsuit filed by the state and municipal coalition against EPA over its roll-back of the Clean Power Plan, the first-ever nationwide limits on one of the largest sources of climate change pollution—existing fossil-fueled power plants."

That particular "lawsuit brought by states and local governments contends that the rule change is unlawful and should be prevented from being implemented, and that EPA has not only the authority to limit greenhouse gas emissions from existing power plants but the affirmative obligation to ensure that compliance with the Clean Air Act is based on the emissions reductions achievable through the 'best system of emission reduction,'" the news release says.