Kentucky House resolution would command state to defy EPA on air pollution from coal, gas - Courier Journal

Kentucky GOP resolution would direct state to defy EPA on air pollution

Kentucky House resolution would command state to defy EPA on air pollution from coal, gas
Connor Giffin

A new, Republican-led joint resolution would declare Kentucky "a sanctuary state" from the U.S. Environmental Protection Agency's regulations on fossil fuel-fired power plants, directing the state's Energy and Environment Cabinet to defy federal air pollution rules.

For Kentucky's coal and natural gas power plants, air quality standards "shall not be subject to federal regulation," the resolution says. It would also prohibit state agencies from collecting penalties "for any violations of federal requirements" at fossil fuel-fired power plants — which generate a vast majority of Kentucky’s energy.

In the resolution, introduced in late February, House Republican lawmakers are "asking the cabinet to violate federal law," said Randy Strobo, an environmental lawyer who works with the Kentucky Conservation Committee in Frankfort.

Rep. Jim Gooch, R-Providence, sponsored the resolution, along with six other Republican co-sponsors: Reps. Wade Williams, R-Earlington; John Blanton, R-Salyersville; Ryan Dotson, R-Winchester; Chris Fugate, R-Chavies; Steve Rawlings, R-Burlington; and Tom Smith, R-Corbin.

Gooch, the longtime chair of the House Natural Resources and Energy Committee who has a history of rejecting the science of climate change and the role of fossil fuels, did not respond to requests for comment on the resolution.

Along with the proposed directives to the cabinet, the resolution points to rising electricity costs and a “history of regulatory overreach” by the EPA as reasons for pushback.

As examples of overreach, the resolution cites new greenhouse gas emission standards and the EPA’s embattled Good Neighbor provision, requiring “upwind states to ensure that their emissions do not interfere with the ability of downwind states to meet federal air-quality standards,” according to the Congressional Research Service.

Resolutions don't change or add to the Kentucky Revised Statutes, the state's set of laws. But they do carry the force of law, and by directing the state's Energy and Environment Cabinet to defy federal air pollution laws, lawmakers could put the agency in a legal quagmire, experts said.

Can Kentucky defy the EPA?

Through an agreement with the EPA, Kentucky is obligated to enforce environmental regulations according to federal standards. The state's air quality regulations are also subject to review and approval by the federal government.

And while the cabinet's regulatory powers are derived from state law, they’re still very much intertwined with federal standards, Strobo said.

Should the cabinet falter on its regulatory obligations, or become paralyzed by muddled, contradictory rules, it would likely face legal challenges, either from environmental groups or from the EPA itself, experts said — and risk losing its authority to regulate air quality altogether.

"If Kentucky asserts that it is not subject to federal oversight and compliance, it could lose delegated status and EPA would directly issue and enforce air pollution permits for Kentucky," Audrey Ernstberger, a staff attorney for the Kentucky Resources Council, said in an email.

For Kentucky to maintain its authority of implementing the Clean Air Act for power plants, Ernstberger said, the legislature "should probably refrain from adopting provisions such as this that could jeopardize not only continued delegation of that program, but also slow progress towards reducing air pollution-related illness and death."

A spokesperson for the Energy and Environment Cabinet confirmed officials are reviewing the resolution, and declined to comment further. The EPA did not immediately respond to requests for comment.

In the past, the EPA has threatened sanctions against states acting out of line with federal standards, including withholding federal highway funding.

"My best prediction would be that the U.S. EPA is probably in the middle of drafting … a pretty aggressive letter to the state, saying, 'Don't do this, or we'll threaten federal funding,'" Strobo said.

Kentucky lawmakers cling to coal

Kentucky's energy portfolio is still mostly generated by fossil fuels — 68% from coal and 25% from natural gas, as of 2022. The plants generating that energy produce greenhouse gas emissions and air pollutants that are hazardous to human health.

The resulting air pollution does not abide by political boundaries, spurring policies like the EPA's Good Neighbor provisions. Several of Kentucky's power plants border other states, since the facilities are often sited along the Ohio River and other waterways.

Kentucky’s major utilities, including LG&E and KU, have increasingly stepped away from coal and toward natural gas and renewable energy, even as the state's Republican-dominated legislature has sought to keep coal-fired power plants running.

Last year, the legislature added hurdles to retiring fossil fuel-fired power plants despite the urging of utility representatives, who said artificially extending the lives of aging coal power plants would cost ratepayers more.

And this session, lawmakers have proposed a bill that would create additional barriers to retiring these plants, and another that would further entrench Kentucky's energy policy in fossil fuels.

According to the latter, Senate Bill 349, "Further retirement, decommissioning, or demolition of fossil fuel-fired electric generating resources is not necessary for the protection of the environment or the health, safety, and welfare of the citizens of the Commonwealth."

Gooch’s joint resolution cites rising energy costs as a reason to resist EPA regulation on fossil fuel generation. Others believe an attachment to coal power is what has brought rising costs.

"I would argue that (energy costs) are going up because we are hanging on to our coal-fired power plants a little too long," Strobo said, "and they're becoming uneconomical and inefficient."

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Connor Giffin is an environmental reporter for The Courier Journal and a corps member with Report for America, a national service program that places journalists in local newsrooms to report on under-covered issues. The program funds up to half of corps members’ salaries, but requires a portion also be raised through local community fundraising. To support local environmental reporting in Kentucky, tax-deductible donations can be made at courier-journal.com/RFA.

Learn more about RFA at reportforamerica.org. Reach Connor directly at cgiffin@gannett.com or on X @byconnorgiffin.