The feds want cleaner air in Utah, but the state Legislature is ready to fight them

One lawmaker has proposed legislation that would create a process for Utah to ignore rules, like air quality regulations, in the future.

(Rick Egan | The Salt Lake Tribune) The Huntington Power Plant in Emery County, on Thursday, July 21, 2022. Utah is currently challenging an Environmental Protection Agency rule that would limit pollution from power plants like this one, arguing that the cost of implementing the rule would jeopardize electrical power in the state. One lawmaker has proposed legislation that would create a process for Utah to ignore rules like this one in the future.

There is little love lost between the federal government and the state of Utah.

The Beehive State isn’t shy about its distaste for many of the federal government’s decisions — think national monuments, road closures and air quality standards — to the extent that one lawmaker has introduced a bill that would create a process for Utah to ignore federal laws that it deems unconstitutional.

SB57′s sponsor, Sen. Scott Sandall, R-Tremonton, has repeatedly brought up one regulation as an example of a federal law Utah should refuse to comply with: the Environmental Protection Agency’s (EPA) “good neighbor” rule, also known as the ozone transport rule, which sets standards to reduce ozone-forming emissions from power plants that can cross state lines.

“We spent all that time and resources and money [litigating the rule] and we should have spent it somewhere else,” Sandall said on the Senate floor last week. “Had we had this [legislation] in place and a resolution been formed and properly vetted and voted upon, we would have saved a lot of time without having to wait for a judge to tell us that we were not going to have to comply.”

The EPA found that ozone-forming nitrogen oxide emissions from Utah power plants had traveled east to Colorado in 2023. The “good neighbor” rule would have Utah power plants implement selective catalytic reduction, a method that the EPA says can reduce nitrogen oxide emissions by 70 to 90%, to solve the problem.

Utah condemned the “good neighbor” provision from the start, arguing that selective catalytic reduction was too costly and would force two of the state’s coal-fired power plants to shut down, jeopardizing access to electrical power across the state. Last year, the Legislature allocated $2 million for the legal fight against the EPA’s rule.

“If we don’t win this battle with the EPA, we’ll be shutting down our coal-fired power plants in the next two or three years,” said Rep. Carl Albrecht, R-Richfield, at the time. “None of us will still have the power that we need to operate our daily lives.”

The Utah Legislature adopted a resolution opposing the rule on March 14, 2023, which stated that “the Legislature and the governor will support and defend our right, as a state’s right, to an affordable, reliable and dispatchable energy supply from any harmful federal encroachment.”

The EPA says that their proposed rule would reduce nitrogen oxide emissions to such a degree that it would prevent 1,000 premature deaths, 2,400 hospital and emergency room visits, 1.3 million cases of asthma symptoms and 470,000 school-absence days.

The agency further claims that the rule would result in at least $9.3 billion in health and environmental benefits while increasing the overall cost of electricity generation by just 1%.

Right now, the rule doesn’t apply to Utah, since the 10th Circuit Court of Appeals in Denver ruled that Utah does not have to enforce the EPA’s ozone transfer rule until their litigation in the court is resolved. The agency had asked Utah and other Western states to submit plans to reduce their emissions, but it disapproved of Utah’s plan, saying that it did not include any “permanent and enforceable emissions controls” in Feb. 2023.

Utah challenged the EPA’s disapproval alongside other states whose plans had not been approved. The 10th Circuit Court will hear oral arguments in this case in March.

The State of Utah separately challenged the legality of the EPA’s good neighbor rule in the U.S. Court of Appeals for the District of Columbia Circuit in June 2023 — an attempt to get the rule tossed out completely. The case is still pending.

In his presentation to the House Natural Resources, Agriculture, and Environment Committee about SB57 on Wednesday, Sen. Sandall said that the Legislature, not just the judiciary, should be able to check federal laws like the ozone transfer rule.

“Rather than just say, ‘OK, I guess our only avenue is to sue’ — I think that moves our legislative intent solely to the judicial system, and I don’t think that’s right,” he said. “I think, as a Legislature, we have some obligation to stand in the middle before we just turn it over to the court system.”

Opponents of SB57, like Chase Thomas, senior policy adviser for the nonprofit Alliance for a Better Utah, said that instead of saving Utah time and money, approving the bill would result in more litigation.

“Instead of violating the constitutional principles of the Supremacy Clause and the separation of powers, which we believe would only invite lengthy and expensive challenges to this law, in addition to any litigation challenging underlying laws and regulations you may disagree with, we urge you to oppose this bill,” Thomas said to the House Natural Resources, Agriculture, and Environment Committee members on Wednesday.

SB57 passed the House last week. The bill heads to the Senate for one final review before it will arrive on Gov. Spencer Cox’s desk.