Kan. makes it official: no more work on EPA climate rule

Source: Elizabeth Harball, E&E reporter • Posted: Wednesday, May 11, 2016

Kansas Gov. Sam Brownback (R) has barred state agencies from moving forward on U.S. EPA’s regulation to reduce carbon emissions from power plants unless it is deemed legal.

Brownback, already a critic of the Clean Power Plan, signed S.B. 318 into law Friday suspending all work on the climate regulation.

“The EPA’s unprecedented expansion of its regulatory power under the Clean Power Plan is an affront to our constitutional order and the rights of our citizens,” Eileen Hawley, a spokeswoman for Brownback, said in an email. “We will continue to oppose these regulations in court in order to protect Kansans from unnecessary increases in energy costs.”

The law states that “all state agency activities, studies and investigations in furtherance of the preparation of an initial submittal or the evaluation of any options for the submission of a final state plan … shall be suspended until the stay is lifted.”

Kansas is one of 27 states suing EPA to halt the regulation, which would require the state to reduce its emissions rate 44 percent from 2012 levels by 2030.

Before the Supreme Court stay of the Clean Power Plan in February, Kansas state agencies agreed to develop an emissions reduction compliance strategy to submit to EPA. Following the stay, however, the governor said he might reconsider this approach, and the Kansas Department of Health and Environment called off a series of public listening sessions on the rule.

Kansas environmental groups had urged lawmakers to reject S.B. 318, arguing the state could fall behind if the Clean Power Plan is upheld.

“Legislative leadership is important for anticipating future regulations and securing reliable and affordable energy future in our state,” Dorothy Barnett, executive director of the Climate and Energy Project, said in a statement. “This bill takes away precious planning time needed to prepare for eventual carbon regulations like the Clean Power Plan and the opportunity to engage diverse stakeholders in the process.”

However, a national environmental group was less concerned about the bill, given the state’s previous position on the climate regulation.

“It’s not a huge loss because the state had already suspended the process anyway,” Aliya Haq, special projects director for the Natural Resources Defense Council’s climate and clean air program, said of the bill in a recent blog post.

Hubbel Relat, vice president for state policy and general counsel for the American Energy Alliance, a conservative group that supports states halting work on the Clean Power Plan, said in an email the Kansas law is important even though the state drew back from planning efforts after the stay.

“While the state appears to have stopped most planning, this legislation sends a signal that elected officials in Kansas are serious about protecting their residents from this rule,” Relat said.

Kan. agencies not barred from ‘communicating’

S.B. 318 also states that nothing in the measure should restrict state agencies “from communicating with, or providing information to, other state agencies in furtherance of any of the agency’s statutory obligations.”

This language was meant “to reinforce to state agencies that they may continue to communicate with each other during their normal course of business as well as to provide support and technical information to the Kansas Department of Health and Environment and the Kansas Attorney General’s office in support of ongoing litigation in regard to the Clean Power Plan,” Linda Berry, spokeswoman for the Kansas Corporation Commission, said in an email.

“They are, however, to suspend any work related to preparing an initial or final plan to meet the requirements of the Clean Power Plan while the stay is in effect,” she wrote.

That language “was inserted specifically to allow [the Kansas Department of Health and Environment] and other state agencies to communicate with other parties as needed,” added KDHE spokesman Ashton Rucker.

But environmental groups think this could allow Kansas agencies to continue listening to what power companies and EPA have to say about the rule.

Barnett said although Kansas agencies can’t spend state funds to plan for the climate rule, this language will “allow the state agencies to speak to one another, utilities and stakeholders as well as allow them to continue to communicate with EPA and others to further their expertise.”

Relat dismissed a question as to whether the language allows Kansas agencies some leeway in preparing for the Clean Power Plan.

“I read the language as ensuring the agency can continue to do what it must to fulfill its statutory obligations. But there’s no reason to think this includes any CPP-related planning,” he said. “This is the point of the stay — to postpone all statutory obligations until judicial review is complete.”

A ‘legislative temper tantrum’

The Southwest Power Pool, a grid organization that operates in Kansas, is moving forward with its preparations for the Clean Power Plan (EnergyWire, March 10). A spokesman for the Southwest Power Pool declined to comment on Kansas’ new law, however.

Kansas City Power and Light Co., a utility in the state, said it had been working with the KDHE on a state plan under the Clean Power Plan before the stay. Following the stay, the company said in a statement, it “will be closely monitoring the legal process and be prepared to act accordingly with the KDHE when a final decision is reached.”

In addition to Kansas, Virginia and Wyoming also enacted laws restricting state work on the Clean Power Plan this year, and similar bills are under consideration in a handful of other states.

Conservative groups like the American Energy Alliance and the State Policy Network are backing this action, and Clean Power Plan boosters worry this is having a “chilling effect” on state agencies’ willingness to work on the rule (ClimateWire, April 28).

Most recently, Ohio state Rep. Al Landis (R) introduced a bill that would halt his state from pursuing compliance with the Clean Power Plan.

H.B. 541 would simply “prohibit any state agency from implementing the federal ‘Clean Power Plan'” and does not include language to allow the state to pursue compliance if the rule is deemed legal.

Landis leads the Ohio House of Representatives’ Energy and Natural Resources Committee.

Brian Kaiser, spokesman for the Ohio Environmental Council, called the bill “a legislative temper tantrum.”

“The language would prevent the Ohio EPA from implementing the [Clean Power Plan] which … would simply result in the Federal EPA from doing it,” Kaiser wrote in an email. “This has always been a puzzling position for small government Republicans since it puts control in the hands of the Feds instead of empowering Ohio to build a plan that works best for us.”

Landis’ office did not return a call seeking comment on the bill.