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States request Clean Power Plan assistance, mindful of Supreme Court stay

Energyregulators from 14 states have written to the U.S. EPA to request further informationand technical assistance on the Clean Power Plan, acknowledging the U.S.Supreme Court's stay of the rule.

The statesasked Janet McCabe, the agency's acting assistant administrator for the Officeof Air and Radiation, for additional clarity and guidance on several programsand rules ancillary to the Clean Power Plan. The states would like to see afinalized model rule or rules, which the agency was preparing prior to theSupreme Court stay on Feb. 9. Additionally, the states would like guidance onthe proposed Clean Energy Incentive Program, which the EPA on April 26 advancedto the Office of Management and Budget for review.

Signingon to the letter were air regulatory officials from California, Colorado,Connecticut, Delaware, Maryland, Massachusetts, Minnesota, New Hampshire, NewYork, Oregon, Rhode Island, Vermont, Virginia and Washington.

Thestates would also like the EPA to develop a tracking system for allowances orcredits; energy efficiency evaluation, measurement and verification; andappropriate technical assistance related to the requested information.

Thestates acknowledged that the pending litigation may change the guidanceultimately issued by the EPA, but in the meantime, they said, the informationwould be helpful for compliance planning that is already happening.

"Webelieve EPA can provide information helpful to states consistent with the stay,as EPA has done previously when litigation is pending and a stay is ineffect," the letter reads.

Theletter notes that the EPA conducted such work while a stay was placed on theCross-State Air Pollution Rule. The agency released in February 2012 a finalrevised version of CSAPR and a federal plan with the stay in effect.

EPAAdministrator Gina McCarthy, testifying April 19 before Congress, mentionedthat states had asked for some sort of accounting system to track greenhousegas emissions. The administrator had previously as many as 25 states were stillworking on their compliance plans.

Therequest from the states is consistent with an April 27 from New York University Schoolof Law's Institute for Policy Integrity, which said the EPA is operating wellwithin the bounds of the stay by advancing the incentive plan, and can in factcontinue work on other ancillary programs as well.

Opponentsof the rule, including multiple members of Congress, have called on the EPA totoll all the deadlines of the Clean Power Plan for the entire timethe rule is before the courts. But the Institute for Policy Integrity says theopponents are confusing a stay with an injunction, the latter of which is quitespecific in its scope. The Supreme Court's stay, according to the institute, atthe moment applies to the September deadline for states to submit theircompliance plans. The litigation could be solved wellbefore any more of the Clean Power Plan's deadlines are missed, the institutesaid.