Environmental officials from 14 states late last week requested additional information and technical assistance from the Environmental Protection Agency related to the Clean Power Plan, regardless of a Supreme Court-ordered stay halting implementation of the rule. “We recognize that the EPA must respect the stay of the Clean Power Plan regulations in providing additional information and that this information would be subject to the outcome of the federal Clean Power Plan litigation. We believe EPA can provide information helpful to states consistent with the stay, as EPA has done previously when litigation is pending and a stay is in effect,” says the April 28 letter to acting Assistant Administrator for the Office of Air and Radiation Janet McCabe.
The rule, which requires states to develop action plans to meet federally set emissions reduction goals, was stayed in February, shortly before the death of Supreme Court Justice Antonin Scalia. The stay, requested by a large group of states, utilities, and interest groups, was granted by a 5-4 vote, with Scalia in the majority. With the loss of Scalia, and Senate Republicans firmly opposed to filling the vacancy before President Barack Obama leaves office, it remains uncertain if the case against the rule will be heard by an eight or nine-judge panel. In the case of a 4-4 tie, the decision will revert to the U.S. Court of Appeals ruling. In any case, the legality of the rule is not likely to be decided until late 2017 at the earliest.
The rule’s opponents argue that the EPA has exceeded its Clean Air Act authority in basing the carbon reduction targets on actions taken “outside of the fence-line,” or away from the actual coal-fired power plant being regulated, such as by increasing renewable energy usage.
While some states have “put their pencils down” assuming a decision overturning the rule, others, such as the letter’s signatories, California, Colorado, Connecticut, Delaware, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington, have continued working on their plans. EPA has said it is willing to work with states on a voluntary basis.
The letter requests that in addition to the help EPA has already committed to providing, the EPA complete a model plan and provide more information on “the Clean Energy Incentive Program; tracking systems for allowances or credits; and energy efficiency evaluation, measurement, and verification, along with appropriate technical assistance related to this additional information,” the letter says.
“Providing such information and technical assistance could help our states make informed decisions that take into account potential Clean Power Plan obligations along with other factors as we fulfill diverse state and federal commitments,” the letter concludes.
