As questions continue to swirl over whether and how the U.S. Environmental Protection Agency should replace the Clean Power Plan, a dozen states are pressing the agency to replace the rule to provide regulatory certainty for utilities.
Comments were due Feb. 26 on the EPA's request for information on a possible replacement for the Clean Power Plan. A quarter of a million comments have been filed, although just several hundred were available as of March 1. Among those were the comments of dozens of states, filing jointly or individually.
Power industry stakeholders, energy attorneys, states and environmental groups are split on whether the law requires the EPA to have a rule regulating greenhouse gas emissions from power plants. Two judges on the U.S. Court of Appeals for the District of Columbia Circuit warned the EPA in August 2017 that it must regulate those emissions because of the agency's 2009 finding that greenhouse gas emissions endanger public health and welfare.
North Carolina, which until the November 2016 election opposed the Clean Power Plan under previous Governor Pat McCrory, said some of the measures EPA is exploring in its request for information could actually create regulatory uncertainty. The North Carolina Department of Environmental Quality, or NCDEQ, specifically cited a question about providing states wide freedom to interpret and establish their own carbon emissions guidelines.
"This state-level 'Wild West' approach does not create binding, nation-wide, legally defensible [carbon] emissions reductions and creates high uncertainty for all stakeholders, including the most important stakeholder, the public," the NCDEQ wrote. "Allowing states to establish completely independent emissions standards creates regulatory uncertainty."
Moreover, NCDEQ said that electric utilities have already acted "in good faith" to incorporate the cost of carbon reductions into their long-term planning and investments in response to court decisions and previous EPA actions. Now, the agency lamented, the EPA is saying that it is considering a replacement that could disrupt that long-term planning.
Similarly, a coalition of states, including California, Connecticut and Massachusetts, noted that a number of high-profile legal disputes have been settled on the condition that the EPA will regulate greenhouse gases from power plants and companies have taken those agreements as a sign that regulation is coming.
The coalition recalled that EPA Administrator Scott Pruitt has also said one of his goals is to create regulatory certainty for those that are impacted by his agency's regulations, but claimed that some of the actions the agency has taken related to the Clean Power Plan have in fact created uncertainty.
Oklahoma Gas and Electric Co. backed up the states' assertions and said the company supports a Clean Power Plan replacement for the sake of regulatory certainty and to reduce legal complexity. However, OG&E said a legislative approach to regulating greenhouse gases would be a far more appropriate approach than an EPA regulation.
Indiana was one of few that asked the EPA not to replace the Clean Power Plan, as many states urged the agency to promulgate some sort of regulation to replace the Obama administration's carbon-cutting rule. The state argued that the EPA had no authority to promulgate the Clean Power Plan in the first place. Nevertheless, Indiana's environmental officials did offer brief comments generally supporting the measures presented in the EPA's request for information. Those include sticking to compliance measures that can be undertaken "inside the fenceline" of a power plant, such as heat rate improvements, and offering a model state plan. Indiana also requested flexibility to regulate emissions on a unit-by-unit or a broader state-wide basis.
Many states, including Wyoming and Texas, asked for more time to file comments, as did the National Conference of State Legislatures and Association of Air Pollution Control Agencies. North Carolina noted that the comment period for a related Clean Power Plan repeal docket has been extended. Pruitt cited the immense public interest in the matter as reasoning to extend to April 26 the comment period for the repeal proposal, and several states said the same is true for the possible replacement rule.
An EPA spokesperson on March 1 did not say whether the EPA will extend the comment period but said the agency is "committed to expeditiously moving forward with a forthcoming proposed rule." An additional comment period will be opened when a proposed rule is issued, the spokesperson said.
