States are pressing ahead with their plans to comply with the Obama administration’s forthcoming rule to limit carbon emissions from power plants despite a recent setback dealt to the Environmental Protection Agency by the Supreme Court.
Some have said the high court’s 5-4 decision to send the EPA’s mercury pollution rule back to a lower court because the EPA didn’t properly consider the costs of the rule shows the Supreme Court is willing to rein in the EPA. They contend the ruling could have implications for the power plant rule, which is due to be finalized in August.
“I think that this should be a wakeup call to the agency to think about what they’re doing going forward,” Rae Cronmiller, environmental counsel with the National Rural Electric Co-op Association, told the Washington Examiner.
But EPA Administrator Gina McCarthy said those trying to extrapolate some meaning from the mercury ruling for how it might affect the carbon rule in the courts are straining.
“Making a connection [between the two rules] is comparing apples and oranges. Last week’s ruling will not affect our efforts,” she said Tuesday at a Washington event hosted by the Christian Science Monitor. “It wont affect the Clean Power Plan.”
Thirty-two states formally opposed the proposed power plant rule, which aims to cut electricity emissions 30 percent below 2005 levels by 2030, in formal comments to the EPA. Most of those called for an outright withdrawal, said Laura Sheehan, spokeswoman with the American Coalition for Clean Coal Electricity.
But at least 41 states are working on plans to comply with an eventual final carbon rule, said David Doniger, director and senior attorney for the Natural Resources Defense Council’s climate and clean air program.
“Most states that profess to have legal concerns are also working on plans,” Doniger said in an email.
Perhaps significantly, though, Bill Becker, president of the National Association of Clean Air Agencies, said that not all states are working on plans at the moment. But he said work will begin “in earnest” once the rule is finalized this summer.
Indiana, for example, isn’t currently drafting a plan, said Dan Schmidt, Gov. Mike Pence’s policy director for energy and environment. But Schmidt said Pence had made that decision before the Supreme Court mercury ruling and that the Hoosier State would proceed with crafting a plan if changes are made in the final rule.
And while states are largely waiting to dig into the nitty gritty of how to redesign their energy plans, even recalcitrant ones have hired or consulted with firms that are looking at regional and state-centric approaches for reducing emissions, said Amy Farrell, vice president of market development with industry group America’s Natural Gas Alliance. States aren’t likely to alter course just because of the mercury ruling, she said.
“There was a lot of legal uncertainty before the [mercury] decision. There’s still a lot of legal uncertainty. So to our minds it probably doesn’t change the way the states would approach the rule,” she told the Examiner.
The Supreme Court ruling followed recent statements by several governors — Republicans Pence and Scott Walker of Wisconsin — who have signaled they won’t comply with the rule without major changes. Republican Oklahoma Gov. Mary Fallin has issued an executive order forbidding compliance. Other states, such as Kentucky, have passed legislation to restrict the ways a state can comply with the regulation, though the Bluegrass State might accidentally comply with the rule regardless.
“The administration equating our commentary on the relevance of the [mercury rule] to [the carbon rule] as “apples to oranges” presents a straw man that distracts from the lesson states should take away from [the mercury rule] — if you start implementing the rule before full legal resolution, there’s no going back. Even worse, the EPA is counting on this to happen,” Hubbel Relat, vice president for state policy with the conservative American Energy Alliance, said in an email.
With the mercury rule, EPA detractors said that states handcuffed themselves by complying before the regulation cleared legal challenges. The compliance deadline was in April, though a handful of power plants received a one-year extension. Facilities that already have been shuttered aren’t expected to come back online, so the damage is largely done.
Critics of the carbon rule say the EPA has overstepped its legal authority. Some have argued that it’s best to wait out a final court ruling rather than submit a compliance plan based on EPA state emissions targets that, as proposed, call on carbon reductions by improving power plant efficiency, switching coal- to natural gas-fired generation, adding renewable power and bolstering customers’ energy efficiency.
“Clearly, there is no reason to subject their states to such unnecessary pain before the courts have even had a chance to weigh in, especially if the Supreme Court simply ends up tossing the regulation out,” Senate Majority Leader Mitch McConnell, R-Ky., who has urged states not to submit plans to EPA, said last week after the Supreme Court decision.
Cronmiller said his group would advise states to submit a plan that only addresses improving efficiency at individual smokestacks — the only part of the proposed rule many critics feel EPA has legal authority to implement — to avoid reconfiguring electricity infrastructure in case the Supreme Court eventually rules against the carbon rule.
But even Oklahoma, whose attorney general has filed a lawsuit against the proposed carbon rule is analyzing ways to comply. When asked whether the state was sussing out such details, Aaron Cooper, a spokesman with GOP Attorney General Scott Pruitt, said, “Yes.”
“Yes, and even EPA’s proposed rule is imposing great cost to the citizens and state of Oklahoma, and its public utilities. It is also clear that the final rule will impose enormous additional costs on the state, its public utilities and its citizens. The rule is a transparent attempt to shut down coal-fired electricity generating units, with no regard for the costs and legality of doing so,” he said in an email.
Cronmiller admitted the mercury ruling was narrow, as it preserved the EPA’s ability to regulate pollutants. And despite some protestations from politicians that the mercury rule held some broader implication for the power plant rule, Cronmiller said it likely wouldn’t affect the strategies states take to comply with the eventual rule.
McCarthy warned that the EPA could implement a federal plan if states don’t submit their own.
Becker said that plan likely would be less customized to individual states and could cost residents more.
Regardless, McCarthy said she doesn’t think it will come to that. She said that while some governors have publicly harangued the EPA, careerists at the state environment and energy agencies are quietly working on compliance plans.
“There are some governors that have sent signals, some stronger than others. It is, to me, very limited at this point,” she said. “While there may be governors that are making statements, those statements are not filtering down.”
