At the one-year anniversary of the finalization of the Environmental Protection Agency’s Clean Power Plan, California this week became the first state to release a proposed compliance plan for the rule.
The Clean Power Plan, carbon emissions standards for existing coal-fired power plants, was finalized on Aug. 3, 2015. It requires states to submit action plans to meet federally set carbon emissions reduction goals.
The document, as written, mandated that states submit initial plans, or requests for an extension, by September. However, the Supreme Court in February unexpectedly voted 5-4 to halt implementation of the rule. Because of the stay, all compliance deadlines that hit while the Clean Power Plan is undergoing legal challenge will be delayed.
“Sometimes our efforts to protect public health and environment face opposition and/or litigation. The Clean Power Plan is no different and was stayed by the Supreme Court until the litigation is resolved. However, it will see its day in court and EPA remains fully confident in its legal merits,” EPA Administrator Gina McCarthy wrote in a blog post Wednesday.
While it was under no obligation to do so, California pushed ahead with development of its state implementation plan. Because of the stay, the EPA can’t do anything with the state’s plan that would suggest implementation, so it is likely that the plan will remain with the state until the stay is lifted, at which time it will be submitted to the agency.
“Under the current stay, everything is in stasis, nonetheless we felt it prudent to develop this plan, in a sense, as an insurance policy for a time when the court would allow the plan to move forward,” Stanley Young, communications director for the California Air Resources Board, told GHG Daily on Wednesday.
The EPA is barred from implementing the rule while the stay is in place, but if it survives legal challenge, implementation will be imminent.
States are dealing with the uncertainty of the rule’s pending judicial review in different ways. Some states, including California, Oregon, Washington, Idaho, Wyoming, Colorado, Minnesota, Illinois, Louisiana, Virginia, Maryland, Delaware, Pennsylvania, New York, Connecticut, Rhode Island, Massachusetts, New Hampshire, and Maine, have decided to continue working their implementation plans.
Other states, including most of the parties to the lawsuit challenging the rule’s legality, have “put their pencils down,” halting work on compliance plans entirely. Kansas, Wisconsin, Arkansas, Utah, Nevada, Montana, North Dakota, South Dakota, Nebraska, Oklahoma, Texas, Mississippi, Alabama, Georgia, North Carolina, Kentucky, West Virginia, Indiana, Michigan, and New Jersey are in this category.
Young said he doesn’t think “pencils down” is the best way to approach the situation. “We want to encourage other states to move forward with their own plans, and they could either use our plan as a guide or develop their own approach, as fits their own unique requirements and the individual structure of their energy generation sector,” Young said. Moving forward with the compliance plan has also provided certainty to the market and individual energy generators in letting them know what the state’s intentions are if the stay is lifted, he added.
California’s plan incorporates the state’s existing cap-and-trade program, which launched in 2012. “We did have a running start at reducing greenhouse gas emissions from the power sector,” Young said. “That made it in essence a relatively straightforward task to align our program with the Clean Power Plan.”
The state has elected to go with a “state measures” approach allowable under the CPP, which gives state significant leeway on how they meet their goals. The “state measure” in California’s case is the existing cap and trade program. “Under this approach, [energy generating unites]s participating in the Cap-and-Trade Program will have a federally enforceable obligation to comply with key Program requirements, while other participants in the market program will continue to have only state-enforceable obligations,” the plan explains.
The proposed state implementation plan will open for public comment Friday and will remain open until Sept. 19. A public meeting of the California Air Resources Board is scheduled for Sept. 22, at which time the board will consider the plan and then give additional direction to staff. The board will consider the plan for adoption following another meeting next spring.
From the issuance of the stay, the EPA has made clear that while it cannot take any actions related to implementation of the rule, it can work with states that continue working on their plans on a voluntary basis.
“Right now, states and stakeholders do not have to comply with the Clean Power Plan while the stay is in effect. The Court, however, did not tell EPA to stop all work related to the Clean Power Plan, and, in fact, many stakeholders have asked the agency to continue providing assistance so that they can move forward on a voluntary basis,” the EPA said Wednesday.
California did work with the federal agency on a voluntary basis, Craig Segall, senior staff attorney for the California Air Resources Board, said in an interview. “U.S. EPA’s ability to weigh in is limited right now, but they’ve been helpful in responding to our questions, so when we needed to ask them a practical question to move forward, they were able to offer us advice on a voluntary basis,” Segall said.
The state has also been discussing implementation plans with neighboring states, Young said: “I think we’ve been in informal discussions at staff levels about what we’re thinking and what we’re doing. I wouldn’t say that there’s been anything formal at this point.”
Both Young and the EPA said they believe the rule will survive the legal challenge. Oral arguments in the lawsuit, which argues that the agency has overstepped its authority with the rule, are scheduled for Sept. 27 before the U.S. Court of Appeals for the District of Columbia Circuit. The suit is almost certain to be appealed to the Supreme Court, which could decide the case as early as 2017.
How the Supreme Court will rule in the case is anybody’s guess. With Antonin Scalia’s seat still open following his death in February, and the current Congress refusing to fill it while President Barack Obama remains in office, nobody can be sure what the court will look like when it reviews the case.
If Scalia’s seat remains open, it could be assumed the high court would rule 4-4, based on how the justices voted on the request to stay the rule. In the case of a tie, the ruling would revert to the decision of the appeals court, which again, is anybody’s guess.
