Greenwire’s Chemnick discusses legal, legislative impacts of EPA delay on power plant regulations 

Source: Monica Trauzzi, E&E • Posted: Monday, January 12, 2015

How will U.S. EPA’s move to delay its final power plant standards affect the future of the regulations? On today’s The Cutting Edge, Greenwire reporter Jean Chemnick discusses the political and legal maneuvering behind the delay. She also talks about the agency’s strategy in announcing plans to release a model rule for state compliance with the Clean Power Plan.

Click here to watch E&ETV’s The Cutting Edge.

Monica Trauzzi: Welcome to The Cutting Edge. How will EPA’s move to delay its final power plant standards impact the future of the regulations? Greenwire‘s Jean Chemnick is here with details on the legal and legislative consequences. So, Jean, this didn’t come as a total surprise, but it’s significant in a few different ways. How is this going to affect the GOP’s plans to take legislative steps to delay or somehow derail this rule?

Jean Chemnick: Well, it will delay them. Republicans have long said that they want to use the Congressional Review Act to scrap pretty much each of these rules, and the advantage of doing that is that it allows a resolution to pass with a simple majority in the Senate rather than a 60-vote majority. So it’s harder for Democrats to block those resolutions. And the new majority leader, Mitch McConnell, actually tried to do that with the new power plant proposal last year but was told that he had to wait for it to be final in order to go forward with the CRA resolution. So this will mean that a CRA resolution on any of these rules can’t happen in the early part of the Republican majority.

Monica Trauzzi: With this new timeline, will the Obama DOJ still be in that safe zone to defend the rule before the D.C. Circuit Court prior to the president leaving office?

Jean Chemnick: I’m told that it should be. This does delay, especially the new power plant rule, for a few months, but there still is only a 60-day window to file a challenge, so if EPA comes out with these rules in midsummer, that means that those challenges should be filed next fall, which means that there should still be a year for briefings and arguments, which should leave this administration in charge of those defending the rules. And EPA is very likely to push for an expedited process to make sure that it is in charge of defending these rules. There could also be advantages in putting these out as a package because EPA can make more of a case for how they come together, and there’s less of a likelihood that the new power plant rule will be out in front and will be thrown out, and that could be a real problem for the whole package because the Clean Air Act specifies that a 111(b) rule needs to be in place in order to support the rest of the regulations.

Monica Trauzzi: And there’s a question on what midsummer means exactly. I’ve been hearing that that could mean as late as Labor Day perhaps. EPA also announced this week it’s going to establish a model rule for states for clean power plant compliance, and that’s going to be released at the same time as the final rule. What’s the strategy there in addressing some of EPA’s concerns on state compliance?

Jean Chemnick: Well, EPA has made it — has said over and over that it is taking on an unprecedented amount of stakeholder outreach on this rule, especially to states, which will play a leading role in implementing the rule. And all the states, you know, filed extensive comments to EPA saying what their concerns were about the rule ahead of the December deadline, and EPA is likely to incorporate a lot of those or some of those in a final, you know, rule.

Monica Trauzzi: Any indication of how flexible the agency might be in this model rule or is it really serving as more of an encouragement to states to create their own compliance mechanisms?

Jean Chemnick: Well, in making this announcement this week, Janet McCabe did say that she was hopeful that as many states as possible would write their own rules, and part of the reason for that is that states can incorporate much more flexibility in state plans and take into account their own realities within their states, more than EPA might be able to. And part of the aim, I think, in doing the federal rule is to show states what would happen if they refuse or are unable to write a state plan for compliance, that this is something that would be enforced upon them and that they’d have to live with.

Monica Trauzzi: All right. Lots of moving parts here. Thank you for coming on the show. It was nice to see you.

Jean Chemnick: Thanks.

Monica Trauzzi: More Cutting Edge coming next Friday. We’ll see you then.