More than half the country may turn its back on the Obama administration's plan to pump up clean energy, given the Supreme Court's February stay of the Environmental Protection Agency's landmark climate rules.
The 27 attorneys generals suing the agency over the Clean Power Plan advised the head of the EPA at the beginning of the month that states aren't likely to participate in the rulemaking process for the agency's Clean Energy Incentive Program while the power plan remains halted by the court.
The clean energy program is a voluntary part of the Clean Power Plan, meant to encourage states to develop renewable energy and efficiency in low-income and minority neighborhoods to comply with the climate rules.
In a letter placed in EPA's official docket for the program on Friday, the attorneys general of the states that won the court stay requested that EPA Administrator Gina McCarthy extend the comment period for the incentive program to 60 days after the court stay is lifted. That could be well over a year from now. And they said the program should be killed if the courts reject the Clean Power Plan.
In a sign the EPA probably will not grant the states' request, the agency late last month extended the deadline to comment on the incentive measure from Aug. 29 to Sept. 2, to better coordinate with a public hearing it held on the proposal Aug. 3 in Chicago.
Still, the states argue that the Supreme Court is on their side in the request. "Extending the comment deadline is required by the stay," they argued.
"As the states have repeatedly explained since the stay was entered, that means EPA and its agents possess no authority to require states take action regarding the Power Plan," the letter said. "Indeed, EPA officials have acknowledged — as they must — that the agency cannot require states to take any action related to the Power Plan during the stay."
They argue that the agency shouldn't waste states' time and resources on a proposed rule that could become moot if the Clean Power Plan is stricken down.
"Yet, EPA is now attempting to force states to take action on a proposal that would not exist but for the Power Plan," the letter added.
More than a dozen states, including the Northeast and West Coast states, have said they are planning on moving forward with plans to comply with the Clean Power Plan and likely will be commenting on the proposed incentive program in the next few weeks. California released a blueprint of its EPA clean power compliance plan last week. The blueprint combines updates to its current cap-and-trade program, which already is miles ahead of the rest of the country on addressing climate change.
As of Friday, only 11 comments were filed in the proposal's online docket since the EPA proposed the measure on June 30. Most of the comments, with the exception of the opposing states, were from anonymous individuals supporting the program and were not substantive.
Some of those who disclosed their identities expressed the need to move away from dirtier fuels in poor neighborhoods where coal and oil power plants are typically found.
"If coal plants were slated for Winnetka or the Gold Coast [in Chicago], the uproar from the rich and powerful would be deafening," said Jim Arneberg, a resident from the Chicago suburb Hoffman Estates. "Politicians would be scurrying to protect wealthy neighborhoods from the injurious health effects and deleterious costs of burning coal."
"If it is strengthened, the [Clean Energy Incentive Program] can be a step towards justice for the communities who've borne the greatest burden of carbon pollution, but it is only a first step," said Caleb Laieski, a private citizen. "These communities need much more."
Vien Truong, national director for the environmental justice group Green for All, told the Washington Examiner that she is confident the Clean Power Plan will make it through court review. Her group believes the incentive program is a first step in helping reduce pollution in poorer areas, but that the climate rules are the priority.
Truong's group was in Chicago to participate in the EPA public hearing last week, along with dozens of other environmental and justice groups that provided hours of testimony.
But even with that outpouring of support, all of the states opposing the climate plan are not expected to participate in the incentive program.
Based on the stay, which was "obtained over EPA's vigorous opposition, many states may reasonably choose not to participate in the comment process," the states said in their letter to McCarthy.
They advised the agency that not moving ahead with the program "would not harm EPA or the public interest."
"Indeed, the extension could save significant public resources by postponing any further work on the CEIP until it is clear whether the Power Plan has survived judicial review," the states said in the letter.
Bill Becker, the executive director of the National Association of Clean Air Agencies, the trade association for the states' air agencies, told the Examiner in an email, "Most who oppose will likely not submit comments."
The EPA has said that moving ahead with the incentive program is not a violation of the stay and is a voluntary program that states can adopt, or not, to receive credit for deploying solar energy resources and energy efficiency under the Clean Power Plan.
The full D.C. Circuit Court of Appeals will hear oral arguments Sept. 27 in the lawsuit. The court is expected to issue its decision on the legality of the Clean Power Plan by the time President Obama steps down from office.
Regardless of what the court decides, the climate plan is expected to go to the Supreme Court, and the stay will be in effect until the high court makes a decision.