On April 4, 2012, Oklahoma Attorney General, E. Scott Pruitt, filed a petition with the United States Court of Appeals for the Tenth Circuit (“10th Circuit”) on behalf of the state, Oklahoma Gas & Electric (“OG&E”), and Oklahoma Industrial Energy Consumers seeking a stay of the Environmental Protection Agency’s (“EPA”) Federal Implementation Plan (“FIP”) (or “regional haze rule”) for the state.  The FIP was promulgated on December 28, 2011, and it is currently being challenged on appeal.  The FIP imposed new sulfur dioxide (“SO2”) emission limits on coal-fired electric generating units in Oklahoma.

EPA justified its decision to issue the FIP by stating that Oklahoma’s regional haze State Implementation Plan (“SIP”) did not properly determine “best available retrofit technology” (“BART”) requirements for the units located in the state, obligating the EPA to utilize its FIP in order to fill the regulatory gap created by the state (see December 19, 2011 edition of the WER).  OG&E is the state’s largest electric generator. According to the petition, EPA’s current regional haze rule will cost OG&E more than $1.2 billion.  This represents the costs of installing dry flue gas desulfurization technology (“scrubbers”) on four electric generating units in the next five years. 

The request for stay states that EPA violated the Clean Air Act and the Administrative Procedures Act by implementing the final rule on regional haze.  Specifically the stay petition claims that: (1) EPA’s preemption of Oklahoma’s SIP was arbitrary and capricious; (2) the final rule utilized new EPA theories not listed in the proposed rule, thus denying adequate notice and comment; (3) EPA usurped “broad authority given by Congress to the States to make rules for best available retrofit technology;” (4) the current January 27, 2017 deadline imposed on the state of Oklahoma is untenable because if the EPA final rule is overturned, OG&E cannot recover an estimated $30 million in work that would need to begin this year; and (5) the costs of the FIP will cause consumer prices to rise significantly.

A copy of the petition for stay filed by the Oklahoma Attorney General is available here.