EPA Publishes Final Clean Power Plan Rules, 24 State AGs File Challenge

Final rules for President Obama’s Clean Power Plan were published on Friday (Oct. 23) in the Federal Register, opening the doors for legal challenges and removing barriers for Arkansas and other states to move forward with plans to implement their own strategy to comply with the far-reaching greenhouse gas rules.

The Environmental Protection Agency’s (EPA) so-called 111 (d) regulations, which for the first time puts national limits on carbon pollution, establishes final emission guidelines for states to  follow in developing plans to reduce greenhouse gas emissions from existing fossil fuel-fired electric generating units. Publication of the final rules in the Federal Register triggers a 90-day comment period that will end Jan. 21.

Nationally, the plan for the first time puts limits on carbon pollution, cutting U.S. carbon pollution from energy producers by 870 million tons, or 32% below 2005 levels, in 2030. In Arkansas, the initial Arkansas target of 46% reduction in carbon emissions was lowered to 37% when the EPA released the 1,560-page draft of the final regulations on Aug. 3.

According to the EPA, Arkansas, like all states, will have flexibility to meet EPA’s goal by using the energy sources that work best for it and by cutting energy waste. To date, all 50 states have demand-side energy efficiency programs, 37 have implemented renewable portfolio standards or goals, and 10 have adopted market-based greenhouse gas emissions programs.

In its executive summary of the final Clean Power Plan rules with the Federal Register, the EPA said it addressed the comments and concerns of states and other stakeholders while staying consistent with the law.

“As a result, we have followed through on our commitment to issue a plan that is fair, flexible and relies on the accelerating transition to cleaner power generation that is already well underway in the utility power sector,” the EPA stated.

ARKANSAS RESPONSE
As news that the centerpiece of the president’s climate change policy is now in place, a number of Arkansas stakeholders reacted on Friday afternoon.

Arkansas Department of Environmental Quality spokeswoman Katherine Benenati on Friday said the state regulators have been charged by Gov. Asa Hutchinson (R) to research and develop “the least cost option for compliance” for the state. Just two weeks ago, under the directive of Gov. Hutchinson, top officials with the ADEQ and Public Service Commission met with stakeholders to outline the state’s response for putting Arkansas on track to cut carbon pollution from the power sector 36% below 2005 levels by 2030.

“Today’s publication starts the effective compliance period. It also opens up a 90-day comment period on the proposed model rules (rate and mass) and the proposed federal plan” she said. “We will be engaging the stakeholders in the next several weeks on the issues that are open for comment.”

The Arkansas Advanced Energy Association, which held its annual meeting earlier this week where a panel discussed how the final rules would affect Arkansas taxpayers, businesses and consumers, applauded Thursday’s news.

“Today’s publication of EPA’s Clean Power Plan in the Federal Register means Arkansas can now move forward with modernizing its electric power system for the 21st century,” said AEAA Executive Director Steve Patterson. “As we see it, the Clean Power Plan simply accelerates the technology and market trends that are already moving Arkansas toward an electricity system that is more reliable, clean, affordable, and responsive to customer demands.”

As one of the stakeholder groups in the ongoing ADEQ and PSC stakeholder meetings, however, Patterson criticized the Hutchinson administration’s two-pronged strategy of seeking to comply with EPA regulations while also pushing litigation by Attorney General Leslie Rutledge to halt the federal mandate.

“Unfortunately, Arkansas’s dual track strategy of seeking compliance options while pursuing legal challenges to the new rule only dilutes the state’s resources that should be wholly dedicated to a low-cost, clean energy future,” Patterson said.  “Any legal action to delay the implementation of this rule would be disruptive to the market for advanced energy technologies and stifle growth and investment in modernizing the electricity system.”

RUTLEDGE VOWS LEGAL CHALLENGE
In response to EPA’s actions, Rutledge’s office announced again Friday that she had joined 23 other states in filing a lawsuit arguing that EPA has no legal authority “to promulgate or enforce the section 111(d) rule.”

“I have expressed my concerns over this rule since February, even testifying in front of a U.S. House of Representatives subcommittee, and urged the EPA to withdraw the rule,” Rutledge said in a statement. “The EPA is going far beyond its legal authority under the Clean Air Act. This unlawful rule will have serious and significant consequences. In a State like Arkansas where over half of the electricity is responsibly generated from coal-fired power plants, the impact will be felt in the pocketbooks of Arkansas utility ratepayers.”

Besides Arkansas, the other states challenged the final Clean Power Plan rule are Alabama, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, Ohio, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin and Wyoming. The Arizona Corporation Commission and the North Carolina Department of Environmental Quality are also part of the states’ challenge.

SIERRA CLUB MOCKS RUTLEDGE’S CHALLENGE
In response to Rutledge’s expected legal challenge, Sierra Club Executive Director criticized the AGs latest stance with a personal dig at the AG.

“While Arkansas’s utilities, state agencies, and environmental groups are already working to reduce carbon pollution, Attorney General Rutledge is engaged in yet another attack on clean air protections,” said Hooks, who has tangled with Rutledge on several occasions since the Republican lawmaker took office. “Since assuming office in January, Rutledge has lined up against every single clean air protection she can find. Endless and expensive legal fights against clean air are not what we should get from our Attorney General, but it’s sadly what we have come to expect.”

Hooks added: “I fully expect that her latest anti-clean air filing, like her previously unsuccessful challenges to the Clean Power Plan, will be rejected by the courts.”

EPA CHIEF DEFENDS THE FINAL RULES
During a visit to Little on Oct. 7, EPA Administrator Gina McCarthy shook off criticism of the Obama Administration’s climate change rules after West Virginia Attorney General Patrick Morrisey had filed a Freedom of Information Act (FOIA) request for communications between the EPA and the Office of the Federal Register regarding the publication of the Clean Power Plan.

The request, which was joined by Rutledge and AG offices in 13 other states, complained that McCarthy was purposely delaying publication of the final rules in the Federal Register. Earlier in September, the U.S. Circuit Court of Appeals for the D.C. circuit dismissed a stay request filed by Morrisey, Rutledge and 14 other attorneys general to halt implementation of the Clean Power Plant. The three-judge panel from the D.C. Circuit ruled that Morrisey, Rutledge, and the other AGs must wait for the EPA to publish the regulations in the Federal Register before they can file a lawsuit against it and request a stay.

In a blog post on Friday McCarthy again defended the new greenhouse gas rules, saying there are “ground firmly in science and the law.”

“Science clearly shows that carbon dioxide fuels a changing climate, which in turn poses threats to our health and to the environment that sustains us all,” McCarthy said. “The plan is fully consistent with the Clean Air Act, and relies on the same time-tested state-federal partnership that, since 1970, has reduced harmful air pollution by 70%, while the U.S. economy has tripled.”

McCarthy also said the EPA will continue working with states, the energy sector and other stakeholders to fully implement the law.

“And we’re encouraged to see that many states are beginning their own planning processes because that means they’re preparing to take action,” the EPA chief said.