Despite hostility toward EPA, Kan. will forge its own Clean Power Plan response 

Source: Scott Detrow, E&E reporter • Posted: Tuesday, June 2, 2015

When U.S. EPA announced its ambitious effort to cut the power sector’s carbon footprint 30 percent below 2005 levels over the next 15 years, Kansas Gov. Sam Brownback (R) called the proposed regulation “a war against middle America.”

And yet, one day before he signed a new law eliminating his state’s renewable portfolio standard and replacing it with voluntary goals, the deeply conservative governor also signed a measure setting a path for Kansas to develop its own state implementation plan for the federal regulation. Brownback signed both measures into law last week.

The law puts Kansas on a path different than the “Just say no” approach Senate Majority Leader Mitch McConnell (R-Ky.) is urging states to take with EPA’s Clean Power Plan. So far, the governors of Oklahoma and Texas have said they’ll follow McConnell’s lead and refuse to submit an implementation plan to EPA, forcing federal regulators to come up with the state strategies themselves.

The new Kansas law creates a legislative “study committee” that will consult the state’s Department of Health and Environment as it crafts a plan to meet EPA’s emissions goals. The panel, which includes top members from the state House and Senate’s environment- and energy-related committees, would be able to reject the Kansas plan or call for revisions. The state’s attorney general and state corporation commission would play a role in reviewing the strategy, as well.

However, regardless of where the review process stands, the department would be able to submit its latest proposal to EPA when the implementation plans are due.

Kansas is the fourth state to pass a law this year giving the Legislature some sort of consultation role in how its environmental regulators craft a plan to meet EPA’s power plant regulations. Like measures passed in Arizona, Arkansas and North Dakota, the Kansas law falls short of the full legislative veto power that the influential American Legislative Exchange Council has called for (ClimateWire, April 10).

West Virginia enacted an ALEC-style law earlier this year, as did Pennsylvania in 2014 (ClimateWire, March 5). The initial version of the Kansas measure would have done so, as well, barring environmental regulators from formulating an implementation plan without “specific statutory authority.”

‘Needless delays and possible inaction’?

Speaking after the bill signing, legislative leaders said that in the end, despite their concerns about the Clean Power Plan, they wanted the state to develop its own approach to the regulation. “We didn’t want to have a federal plan put upon us. We wanted to be prepared with a state plan if one was needed,” said Republican state Sen. Robert Olson, who chairs the Senate’s Utilities Committee, according to public radio station KCUR.

The Kansas Chamber of Commerce has raised concerns about the Clean Power Plan’s impact on electricity prices and reliability but endorsed the new law for similar reasons.

“We support a strong response in the best interests of the state and the many affected ratepayers,” said CEO Mike O’Neal in his testimony at an April hearing.

Within the prism of the state’s energy politics, the Kansas Sierra Club’s legislative director, Zack Pistora, viewed the new law as a win. “It comes down to, we’re going to come forth with a Kansas plan to address emissions. And that’s a positive thing,” he said.

The Natural Resources Defense Council, which has long bird-dogged ALEC’s EPA-related model legislation, had a similar view, since the law falls short of authorizing full legislative veto power. “If I were a company funding ALEC, I would cancel my membership with such a poor return on investment this year,” said Aliya Haq, who has been tracking the progress of ALEC bills for NRDC.

But Bill Becker, the executive director of the National Association of Clean Air Agencies, said in the end, he doesn’t see much difference between legislative panels and full legislatures approving, rejecting or consulting on state implementation plans. “These reviews can be needlessly complicating and could significantly postpone the submittal of state plans to EPA within the established federal deadlines,” he said.

“Generally speaking, these planning processes have worked very well in the past without the extra layer of review. At issue is the extent to which the extra layers of review cause needless delays and possible inaction,” Becker added.

Of course, for some of the people advocating for this type of legislative oversight, delay and possible inaction are the entire point of the measures.