State regulators halt meetings on Clean Power Plan after U.S. Supreme Court stay

Top officials with the state Department of Environmental Quality (ADEQ) and Arkansas Public Service Commission (PSC) on Tuesday said they will halt stakeholder compliance meetings on President Barack Obama’s Clean Power Plan due to U.S. Supreme Court’s Feb. 9 stay blocking the federal Environmental Protection Agency from implementing the far-reaching carbon emission rules.

In a joint statement signed Tuesday (March 8) by ADEQ Director Becky Keogh and PSC Chair Ted Thomas, the state environmental and utility regulators said the agencies will not hold the upcoming stakeholder meetings planned for later this month.

“The State is not bound to CPP deadlines during the stay and, as such, is no longer required to make an Initial Submittal by Sept. 6, 2016,” the statement said. “Therefore, the March stakeholder meeting is no longer necessary. The (ADEQ and PSC), in consultation with stakeholders, will continue to evaluate the impacts of potential environmental and energy policies in the State.”

The ADEQ-PSC statement continued: “However, this evaluation will occur on a timeline and in a context that makes sense for Arkansas. The State will not implement a state plan to comply with the Clean Power Plan during the stay.”

In last month’s controversial ruling, the nation’s high court issued the stay pending disposition of the Clean Power Plan opponents’ petitions for review in the U.S. Court of Appeals for the District of Columbia Circuit and disposition of the applicants’ petition for a writ of certiorari, which forces the lower court to deliver its record in the case so the higher court may review it.

“If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically,” said the Supreme Court brief. “If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.”

The D.C. Circuit Court will now hear oral arguments on the merits of the states’ case on June 2. A final ruling from that court might not come for months.

At the request of Gov. Asa Hutchinson, Keogh and Thomas began the stakeholders’ group first meeting in the fall to get input on a new “emissions standard” roadmap for putting Arkansas on track to cut carbon pollution from the power sector 36% below 2005 levels by 2030.

Gov. Hutchinson issued this statement about halting the meetings: “The Supreme Court issued a stay of the EPA’s Clean Power Plan which Arkansas opposes and is challenging as a usurpation of the state’s prerogative. As a result of the stay, it’s clear we should halt any action of implementation during the stay, and I appreciate the leadership of Director Keogh and Chairman Thomas on this important issue.”

ADEQ, PSC TO CONTINUE MODELING SCENARIOS
On Jan. 21, Keogh and Thomas submitted final comments to EPA officials in order to meet the EPA’s first deadline for how the state plans to comply with the central piece of the president’s climate change agenda. Comments from state regulators and stakeholders provided a snapshot of how the state intends to comply with the Clean Power Plan.

According to EPA rules, Arkansas regulators will have until Sept. 6, 2016, to submit a final implementation plan to comply with the president’s plan. Arkansas and other states can also choose to submit an initial plan with a two-year extension request, regardless of whether Arkansas chooses to go it alone or join a multi-state plan.

If the EPA does not respond within 90 days, then the extension is automatically approved. However, states must explain efforts they have made to evaluate various approaches to comply with the federal emission rules, demonstrate engagement with the public, and lay out steps and processes necessary to submit a final plan by Sept. 6, 2018.

States that choose to request an extension also must submit a process report by Sept. 6, 2017. Stakeholder input will be a key part of the plan, Thomas and Keogh have said. If states fail to submit an approvable plan, then the EPA will step in and implement the proposed federal plan.

On Tuesday, Keogh and Thomas reiterated that the two state regulatory agencies will continue to follow modeling efforts by the private sector of potential future energy and environmental policy scenarios. The ADEQ and PSC chiefs said they will continue to assess and evaluate energy sector modeling on the Clean Power Plan so the state will be prepared for all possible outcomes on the high court’s ruling.

“As such, the agencies plan to have a technical session on energy sector modeling later this year,” said the state regulators. “The (ADEQ and PSC) appreciate all of the feedback that has been provided. (We) look forward to continued input on the potential impacts of energy and environmental policy on the energy system, the environment, the economy, and our citizens.”

EPA: CLEAN POWER PLAN WILL BE UPHELD
The EPA, which is fully engaged in the controversy over the Flint, Mich., water crisis, has not responded to media inquiries concerning the Supreme Court’s stay in February.

On the agency’s website, federal regulators only offer this brief, terse statement: “On Feb. 9, 2016, the Supreme Court stayed implementation of the Clean Power Plan pending judicial review. The Court’s decision was not on the merits of the rule. EPA firmly believes the Clean Power Plan will be upheld when the merits are considered because the rule rests on strong scientific and legal foundations. For the states that choose to continue to work to cut carbon pollution from power plants and seek the agency’s guidance and assistance, EPA will continue to provide tools and support. We will make any additional information available as necessary.”

In addition to the Supreme Court’s stay of the president’s landmark climate change rule, legal analysts say the 5-4 decision to temporarily hold the EPA plan is the first time the nation’s highest court has prevented a federal regulation from taking place before a lower court had a chance to render a final decision.

The death of Supreme Court Justice Antonio Scalia, which voted for the stay, has some supporters of the Clean Power Plan hopeful the high court will now uphold the EPA mandate once the lower court issues is final ruling. Scalia, along the court’s four other conservative justices, voted for the stay.

The D.C. Circuit is expected to issue a decision on the Clean Power Plan this fall, which would put the rule in front of the Supreme Court in spring 2017. Leaders in the Republican-controlled Senate have said they will not confirm a new justice before Obama leaves office in January.

“On behalf of thousands of Arkansas businesses and employers, I applaud the Arkansas Department of Environmental Quality (ADEQ) and the Arkansas Public Service Commission (APSC) for their decision to cancel the Clean Power Plan stakeholder meeting previously scheduled for March 2016,” said Randy Zook, Arkansas State Chamber of Commerce CEO. “If implemented, the EPA’s Clean Power Plan (CPP) will without question lead to higher electricity costs for residential and commercial customers… As a result of the recent stay issued by the U.S. Supreme Court, Arkansas is no longer required to submit a state plan by September 2016.  Therefore the only practical and financially responsible conclusion is to not only cancel the March stakeholder meeting, but to indefinitely postpone any further stakeholder meetings until the Court has issued its final ruling.”