A Thursday hearing of the Senate Environmental and Public Works Committee concerning the Supreme Court stay of the Environmental Protection Agency’s Clean Power Plan featured many questions and few definitive answers.
The hearing, which featured legal experts and stakeholders from both sides of the argument, focused largely on two topics: whether the EPA should have to say definitively whether all deadlines set by the rule will be pushed back due to the stay, and whether the agency should continue to work on other regulations that are separate from, but related to, the Clean Power Plan while it is on hold.
As expected, the opinions on these questions were passionate and divergent.
“If you interpret a stay to say that we can’t move forward … first of all, it’s not what a stay does, secondly, that is preventing us from doing what we think is right,” Sen. Ben Cardin said during the hearing, stressing that states that do not want to work during the stay should not impede those that do.
The lawsuit against the Clean Power Plan, which requires states to develop action plans to meet federally set emissions reduction goals, features more than half of the states, along with more than 150 interest groups, utilities, companies, and trade organizations. In February, having been denied a stay of the rule by an appeals court, the group sought one from the Supreme Court; in an unprecedented action, the high court ruled 5-4 to grant the stay. It was one of Justice Antonin Scalia’s last decisions before his death.
Under the stay EPA cannot implement, the rule and any implementation deadlines that pass during the time the stay in place will be delayed. This fact is not contested, but the EPA has been under increasing pressure to state definitively that the deadlines that hit after the litigation concludes will also be pushed back, or tolled – assuming the Clean Power Plan survives.
It is agreed that certainly the first and likely the second deadlines in the rule, set for September 2016 and September 2018, both relating to the submission of state plans, will be pushed back, as they will pass while the rule is under the stay. However, the first compliance deadline is not until 2022. The case against the rule is expected to be decided in late 2017 or 2018 and proponent of the Clean Power Plan argue that if the stay were lifted at that time states would have plenty of time to comply.
“Typically all of the deadlines are tolled and are then extended by the period of time of the stay,” Allison Wood, an environmental law specialist and partner at the legal firm Hunton & Williams, said during the hearing. “For example, if the stay were in effect for 500 days, you would then extend all of the deadlines in the power plan by at least 500 days. This is exactly what has happened with other EPA rules that were the subject of a judicial stay.”
Speaking in defense of the Clean Power Plan, Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, did not challenge this narrative, but said now is not the time to make decisions on tolling. “The Supreme Court stay does not mention any such tolling and by its terms is explicitly limited to the duration of judicial review and is silent on what will happen after that,” he said. “There is history under administrations of both parties that makes clear that tolling decisions are made when a stay is lifted not when it’s put in place.”
Essentially, Revesz said, the EPA is under no obligation to definitively state that deadlines will be tolled. That decision will be made, with the instruction of the Supreme Court, if and when the stay is lifted.
Not stating if the deadlines will be tolled is not fair to states that wish to halt work on the plan, as is provided by the stay, according to committee Chairman Jim Inhofe (R-Okla.). “EPA is attempting to downplay the significance of the stay and argue against the clear legal procedures as a last ditch effort to scare states into spending scarce resources complying with the rule that could very well be overturned,” he said. EPA was not represented on the witness panel.
In a further attempt to force states to complete work related to the Clean Power Plan during the stay, Wood said, the EPA has continued to work on regulations connected to the rule. In the time since the stay was issued, EPA had taken action on the Clean Energy Incentive Program and on model trading rules for the Clean Power Plan. The CEIP is a voluntary program in which states would receive emissions rate credits or allowances to promote early investments in wind, solar, and demand-side energy efficiency for low-income communities in 2020 and 2021.
These actions are allowed under the stay because while they are related to implementation, they do not create enforceable obligations for states or emissions sources, Revesz said. “Opponents of the Clean Power Plan claim that EPA is required to cease work on them, but there is ample precedent for EPA continuing to work on implementation-related matters during a stay of a regulation. Indeed, EPA has done so under the last three presidential administrations,” he said.
Wood, however, claimed that in proposing and finalizing these related rules, EPA is forcing states to do work related to the Clean Power Plan when they don’t want to. Her argument boiled down to this: If the EPA takes an action that will launch a public comment period on a rule, states will either have to commit man-hours to readings, digesting, and commenting on that rule related to the Clean Power Plan, or have to risk not getting a say. “The providing of tools to states that want to continue to work cannot force action by those states and regulated entities that do not want to act during the stay,” Wood said.
Of course, during a public comment period, no entity is required to participate. As Wood said, the option to sit out is there.
