Battle lines drawn around EPA’s move against Utah ozone emissions

Utah’s attorney general files suit to overturn “federal regulatory overreach” that could force early retirement for coal power plants.

(Eric Vance | Environmental Protection Agency) A government portrait of William Wehrum in 2017. A former top EPA official, William Wehrum has been hired by Utah Attorney General Sean Reyes to sue the EPA over its rules regarding ozone emissions.

Utah’s ozone wars are now underway and the only sure winners will be the outside lawyers the state has hired to take on the Environmental Protection Agency.

The EPA has formally rejected Utah’s plan to reduce emissions implicated in neighboring states’ ozone pollution problems, triggering the first round of what is expected to be multimillion-dollar litigation. State leaders have long signaled they would rather sue the EPA than require Utah power plants to clean up their emissions.

Posted Monday in the Federal Register, the EPA’s rule is an important move toward federally imposed plans requiring costly emission controls on Utah’s coal-fired power plants. Utah is among 21 states whose ozone plans the EPA found lacking, according to the rule.

Without missing a beat, Utah leaders on Monday filed a petition seeking a judicial review of the decision that they claim will force the early retirements of two critical power plants.

The state’s political leadership “will push back on the federal regulatory overreach that threatens our ability to provide power to our state, fuel our economy and maintain a high quality of life for the people [of] the state,” states a new resolution introduced Wednesday in the Utah Legislature by House Majority Leader Mike Schultz, R-Hooper.

Endorsing the legal action initiated by Utah. Gov. Spencer Cox and Attorney General Sean Reyes, HCR9 contends Utah’s “measured, all-of-the-above energy policy” has driven the state’s economic prosperity through the generation of reliable and affordable electrical power, but now its grid is under assault by an imperious federal overreach.

“The state should fight for a responsible energy policy that embraces efficiency and is based in reality,” the resolution states. “The state should stand in the way of the federal government’s egregious power grab that harms the state’s citizens.”

Environmental advocates blasted the state’s stance as “disgraceful.

“The state has repeatedly abdicated their duty to cut pollution from major sources,” said Lindsay Beebe, a Utah-based representative of Sierra Club’s Beyond Coal campaign, “and now when ethical public servants at the EPA come to do their job for them, Utah’s elected leaders double-down on a strategy to keep Utah polluted.”

She noted Utah leaders have made loud pronouncements about the value of human life and environmental stewardship, yet they fight rules aimed at improving air quality and public health. The state’s recent actions, Beebe said, “demonstrate clearly that they value the profit margins of corporate polluters more, and are willing to sacrifice our tax dollars, respiratory health, and climate to that end.”

Early in the 2023 legislative session, GOP lawmakers pledged $2 million — at the request of Rocky Mountain Power, Utah’s largest electrical provider supplying most of the state — toward a legal fight against the EPA’s push to require states to reduce emissions that are contributing to unhealthy ozone levels in downwind neighboring states.

That appropriation, which is on the Legislature’s priority funding list expected to be approved this session, would be used to pay outside lawyers to help Reyes’ staff wage various legal challenges to EPA’s ozone rulemaking, which has gotten more strict under the Biden administration.

Under Biden, the EPA’s so-called “good neighbor” rule was expanded to require Utah and other states to limit emissions within their borders that are causing excessive ozone in other states. The 21 states the EPA has determined are out of compliance with the rule include Utah’s upwind neighbors California and Nevada.

The complete list runs the United States’ geographic and political spectrums. The EPA has proposed including Wyoming, where Rocky Mountain Power operates several coal-fired units, but it has deferred making a final determination for the Cowboy State.

On Monday, Reyes filed Utah’s petition with the federal 10th Circuit Court of Appeals, listing the Utah firm Holland & Hart and Washington, D.C.-based William Wehrum as counsel.

A one-time fossil fuel industry attorney, Wehrum headed the EPA’s Office of Air and Radiation under President Donald Trump and helped engineer that administration’s efforts to roll back action on climate change.

He resigned in June 2019 as Congress began investigating his alleged contacts with former clients, according to Inside Climate News. Internal EPA documents indicated he was crafting a program of deregulation in collaboration with a coalition of power generators that was a client of Wehrum’s former law firm.

Wehrum has since emerged as a leading litigator against federal regulations on behalf of polluting industries.

The legislative funding request bankrolling Wehrum’s services is sponsored by a coal-country lawmaker, Rep. Carl Albrecht, R-Richfield. It seeks ongoing funding of $2 million a year to support anticipated lawsuits over the ozone transport rule, as well as over Utah’s failure to reduce ozone levels within its own borders.

Utah environmental regulators have claimed that the Wasatch Front’s summertime ozone surges can be attributed to emissions blowing in from California or even China, so there is not much Utah can do to bring the state into compliance. But the EPA has dismissed Utah’s reasoning and signaled it will impose what’s called a “federal implementation plan,” or FIP, for getting Utah into compliance with the ozone threshold.

A dangerous irritant to respiratory tissues, ozone is formed in the atmosphere when various pollutants react in the presence of sunlight. Coal-fired plants are a major source of these pollutants, such as nitrogen oxides, which can be removed from stack emissions with equipment known as selective catalytic reduction, or SCR.

Utah regulators have concluded that the cost of installing SCR on Rocky Mountain Power’s Hunter and Huntington power plants would exceed the value of the environmental benefits that would result.

In its proposals submitted to EPA, Utah officials have also suggested that ozone transport is fundamentally different in Western states than it is for Eastern states, a case that the EPA had previously rejected.

The agency went on to find legal and technical flaws in Utah’s “state implementation plan,” or SIP, faulting it for including no permanent and enforceable emissions controls. It also concluded Utah emissions contributed measurably to ozone levels in Colorado’s Douglas County, south of Denver.