Governors' Wind Energy Coalition

The National Association of Clean Air Agencies (NACAA), representing state and local air officials, is crafting a template for how states could craft plans for complying with EPA’s pending climate rule for existing utilities, which may help address states’ concerns over the burden in meeting the rule’s tight timeline for writing the plans.

One state source says the model will help state air agencies as they grapple with questions like “what the heck do I have to do” and “what are the choices I need to make or can make” as they scramble to meet an aggressive deadline set by President Obama to get state implementation plans (SIPs) for compliance submitted to EPA by June 2016, just one year after the agency has been directed to finalize the utility new source performance standards (NSPS).

In addition to NACAA, other groups are trying to develop ways to help states write their utility NSPS compliance plans. The Georgetown Climate Center, for example, is developing resources intended to help states “think through what opportunities may be available” under the climate rule, and to identify policy considerations related to their plans, says a source at the group. The Center does not yet have a timeframe for releasing the resources.

EPA is also taking steps that could help states with their SIPs, recently releasing a tool it says will help states quantify the carbon dioxide (CO2) reduction benefits of their energy efficiency and renewable energy programs, possibly helping states looking to win credit for efficiency programs in their NSPS SIPs.

EPA is crafting the existing utility NSPS under Clean Air Act section 111(d), under which the agency writes general CO2 reduction guidelines but defers to states on writing SIPs outlining the emissions control measures they will put in place to comply. Key questions about the scope and stringency of the rules remain, such as whether it will cover state energy efficiency and renewable energy programs that indirectly cut CO2 emissions.

Obama has directed the agency to propose the rule this June and to finalize it one year later, with the deadline for SIP submission effective June 2016.

Even with that deadline more than two years away, state air officials say they will struggle to meet the June 2016 target, as states already have trouble meeting three-year deadlines to make routine updates to air quality compliance plans. In contrast, Obama is asking states to go into uncharted territory of controlling CO2 from a complex power sector that may require states to overhaul existing laws and regulations to comply.

Compliance ‘Menu’

NACAA, representing air agencies in 43 states, is looking to get a head start on the process by developing a planned SIP template and a “menu” of compliance options states might use in their plans.

The group started work to develop the template and the menu of options following a request last year from its board members, says the state source, with a general goal of helping states write their NSPS SIPs.

Aware of the tight deadline under the rule, state air agencies that are members of NACAA asked the association to come up with a basic template for how to write their 111(d) compliance plans and potential ways they might comply, a role that NACAA has taken on before for other major EPA rules.

For example, NACAA several years ago pursued a model rulemaking for states to control air toxics emissions from boilers, following an appellate court ruling scrapping a Bush EPA’s boiler emission rule.

The template for the climate NSPS rule, the source says, could include boilerplate language and a general structure that would make it “easier for states to get their choices together for EPA,” while the menu of options would include a range of strategies that state air agencies could choose to include in their plans. The source says neither project would suggest how states should comply with the rule, such as preferred policy options for reducing CO2.

Because EPA has not yet proposed the rule, NACAA and state air officials involved in the effort have been looking at the language in the Clean Air Act, comments from EPA officials and the relatively small number of existing rules issued under section 111(d) to get a basic sense of what the state plans will need to include. NACAA is unlikely to release a final product until the agency proposes the rule, the source says.

The template and menu of options will be updated as EPA proposes and finalizes the rule, because “ultimately the product will have to be fully aligned with what EPA’s final rule is if it’s going to be useful for states,” the source says.

The schedule for the NACAA project is unclear. A NACAA official confirms they are working on the template and menu of options but did not know when they would be finished.

The state source, meanwhile, says that NACAA is likely to discuss progress on the projects at the group’s spring membership meeting taking place in Atlanta, GA, in early May.