Opposition bloc of states calls EPA’s power plant rule ‘fundamentally flawed’ 

Source: Nathanael Massey, E&E reporter • Posted: Wednesday, December 3, 2014

Thousands of comments poured into U.S. EPA yesterday as states, agencies, industry groups and stakeholders of all kinds raced to meet the agency’s comment deadline on its proposed rule for power-sector carbon emissions.

The submissions, which EPA will digest as it works to formulate a final rule, touch on everything from the moral imperative of climate action to the minutiae of combined-cycle gas-fired power plants. But a much blunter message emerged from a number of states yesterday, one that put the often complex analysis of the rule in relatively simple terms.

“Our comments are extensive, but I can give you the thrust of them right here: This is energy policy, not environmental policy, and it’s outside of EPA’s jurisdiction,” said Ron Gore, chief of the Air Quality Division at the Alabama Department of Environmental Management.

Two more items at the top of Alabama’s list of concerns, he said, are that greenhouse gas reductions achieved by the rule would be minuscule, and EPA’s inclusion of compliance mechanisms beyond regulation of power-generating units may be illegal.

A similar refrain was echoed by more than a dozen states, most of them in energy-producing regions of the country and all of them steered by Republican leadership. State agencies charged with implementing the rule and the governors behind them opened their comments with a terse rejection of the Clean Power Plan.

“For numerous reasons … EPA’s Proposed Rule is fundamentally flawed and unworkable,” noted the Oklahoma Department of Environmental Quality in comments submitted yesterday.

There are “serious legal and practical issues regarding the approaches set forth in EPA’s Proposed Rule, and prudence requires that the rule not be finalized or implemented until such issues are resolved,” the comments note.

Prelude to lawsuits and (maybe) cooperation

The strong stances held by some states are not altogether unexpected. Many were among the informal bloc of states that emerged in opposition to the rule this summer, when nine states — Alabama, Alaska, Kentucky, Nebraska, Ohio, Oklahoma, South Carolina, West Virginia and Wyoming — joined with coal producer Murray Energy Inc. to sue EPA over its rule.

Eleven states — eight of them already parties to the Murray energy suit, with the addition of Kansas, Louisiana, Indiana and South Dakota — launched a separate suit a few weeks later.

The comments submitted by these states are indeed extensive and range over many of the same technical questions posed by the rule’s supporters. But they also share common themes among themselves, foremost among them concern over the plan’s impact on power prices and ratepayers and its exceedance of EPA’s traditional regulatory authority.

“If enacted, this rule will have devastating impacts on the economy of our state and our nation,” said West Virginia Gov. Earl Ray Tomblin (D), speaking yesterday alongside representatives from the West Virginia Coal Association and Appalachian Power at an event marking the submission of the state’s comments.

Many states — even some, like Montana, whose political leanings swung conservative in midterm elections — have offered more moderated criticism of the Clean Power Plan and refrained from rejecting it outright. And a separate bloc of politically liberal states has come out strongly in favor of the plan — while taking issue with some of its features — even going so far as to try to block the Murray lawsuit last month (ClimateWire, Nov. 13).

The concerns raised by the opposition bloc may serve as a blueprint for future lawsuits, which are all but inevitable once a final rule is issued next summer. The issue of whether EPA may look beyond power plants to fuel switching, carbon-free energy sources and demand-side energy efficiency — the last three “building blocks” in EPA’s approach — is highlighted in many of the states’ comments and will likely feature prominently in future legal arguments over the rule.

Kentucky has gone so far as to rule out all but the first building block, effectively constraining itself to power plant modifications and curtailing the level of flexibility it will have in meeting the plan. Florida and Ohio, meanwhile, have moved to limit energy efficiency and renewable energy targets, reducing their own momentum toward compliance.

But even states that dismiss the rule as unworkable include detailed recommendations and questions as to how the rule was devised or how it might be more equitably implemented, suggesting that even while preparing to fight the rule, states are simultaneously readying for it as a contingency (ClimateWire, Nov. 26).