Since he took office nearly five months ago, Attorney General Russell Coleman has wasted no time challenging the Biden administration’s Environmental Protection Agency.

Currently, Coleman’s office is fighting the EPA over an air pollution rule that could impact coal-fired power plants in Kentucky.

What’s the lawsuit about?

In 2015, the EPA established new air quality standards for ground-level ozone, or smog, in an attempt to reduce emissions and harms of air pollution.

In 2019, Kentucky submitted its state implementation plan, explaining how it would comply with these air-quality standards.

But in February 2022, the EPA hinted that it might deny Kentucky’s plan, citing improper modeling and inaccurate emissions counting. Later in February, the agency proposed a new federal implementation plan that would update the 2015 Ozone National Ambient Air Quality Standards with more stringent standards for about half the states.

The EPA’s Good Neighbor Plan, part of the Clean Air Act, recognized that air pollution in upwind states could negatively impact downwind states.

It required many upwind states to reduce pollution within their borders that interfered with other, downwind states’ ability to comply with NAAQS standards.

The Good Neighbor Plan set a standard of 70 parts per billion for ground-level ozone, based on scientific evidence that 70 ppm would nearly eliminate adverse health effects of smog exposure.

Complying with the new plan would threaten closure of coal-fired power plants in Kentucky.

After the EPA formally denied Kentucky’s implementation plan, then Attorney General Daniel Cameron petitioned the Sixth Circuit Court of Appeals. Cameron asked the court to rule the EPA’s denial of Kentucky’s plan illegal.

“Denying State Implementation Plans, like Kentucky’s, to make room for a rigid federal plan is another attempt by the Biden Administration to force its green policies on Kentucky and other states,”  Cameron said at the time.

In June 2023, the Sixth Circuit temporarily blocked the EPA from rejecting Kentucky’s proposal to regulate air quality within its borders. Now, the court is deciding whether to make the EPA block permanent or lift it.

The court heard oral arguments in the case May 8.

Oral arguments

Matthew Kuhn and Jared Bentley represented the Attorney General’s office and the Kentucky Energy and Environment Cabinet, respectively.

Bentley criticized the EPA for “moving the finish line” with its rule making. He told the panel of judges that the EPA initially told them to use 2018 modeling that had a standard of one part per billion.

However, after they submitted the state implementation plan, the modeling was updated, and Kentucky’s plan was out of compliance with the new, more stringent standard. Twenty other states faced the same issue.

“Their final approval said that we did not provide an adequate technical justification, and our technical justification was what they told us to rely on,” Kuhn said.

Jeffrey Hammons represented the EPA in the courtroom. He said that even if the state was right to challenge the updated modeling and screening threshold, the EPA “still had a reasonable basis to disapprove Kentucky’s submission even under that 2011 base modeling and under one part per billion screening threshold.”

Kentucky was still linked to downwind air quality issues in Hartford County, Maryland, Hammons said.

Also, Hammons argued that Kentucky’s plan barely included any technical analysis that explained how proposed power plant closures would reduce the state’s overall emissions.

“When a power plant closes, the electricity has to come from somewhere, so does that mean existing sources are going to increase their emissions or a new plant is going to be built?” he said. “All of those are information that the agency would need before it can approve Kentucky’s conclusion that these power plant closures are going to be enough.”

Kentucky’s fight for coal

The lawsuit is just one in several steps Kentucky has taken to resist closure of fossil fuel-powered plants.

In 2023, the legislature passed Senate Bill 4, which banned the retirement of coal-fired electric generators unless it can be proven that retirement won’t have a negative impact on consumers’ energy costs or electric grid reliability.

The General Assembly has also passed legislation requiring state pension investments to not include any environmental, social, political or ideological interests.

This session, lawmakers attempted to pass a resolution declaring Kentucky a “sanctuary state” from federal fossil fuel and air quality environmental regulations.

Supports said they felt threatened by EPA rules targeting greenhouse gas emissions that would require fossil fuel power plants to shut down or an aggressive shift to alternative energy generation.

Under the resolution, state agencies would not have been allowed to collect fines or penalties on behalf of the EPA. After passing committee, the resolution did not receive a floor vote.