FOIA Advisor

FOIA News: State AGs submit FOIA concerning clean power rules

FOIA News (2015-16)Allan BlutsteinComment

W.Va. AG leads 14-state coalition in filing FOIA request over Clean Power Plan publication delay

Jessica Karmasek, Legal Newsline, Oct. 7, 2015

West Virginia Attorney General Patrick Morrisey and 13 other state attorneys general want to know why publication of the much-maligned Clean Power Plan rule has been delayed.

Morrisey announced Wednesday that West Virginia along with Arizona, Arkansas, Colorado, Florida, Georgia, Kentucky, Louisiana, Nebraska, North Dakota, Oklahoma, South Carolina, Texas and Wisconsin have filed a Freedom of Information Act, or FOIA, request for communications between the federal Environmental Protection Agency and Office of the Federal Register regarding the rule’s publication.

“Publishing a rule typically occurs much faster than it has in this case,” Morrisey said in a statement accompanying the seven-page request.

“Our goal is to understand the cause behind the unusually long delay between the finalization and publication of the Clean Power Plan.”

EPA Administrator Gina McCarthy signed the rule as final Aug. 3, but it has yet to be published in the Federal Register.

States are not permitted to file a petition for review against the EPA under the Clean Air Act until the rule is published. As a result, states must wait until the publication process is complete before asking a court to stop the agency’s “unlawful” actions, Morrisey noted.

“We want to help the public understand why one of most widely criticized rules in our nation’s history is being subject to such unexplained delays,” he said. “This harms the states and undermines the availability of review by our courts.”

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