EPA Accused of 'Scare Tactic' on Clean Power Plan Stay

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By Andrew Childers

June 9 — Suggestions that the Environmental Protection Agency might not extend the deadlines in its Clean Power Plan, should the rule ultimately be upheld following a lengthy judicial stay, are a “scare tactic” to force states to continue their preparations, opponents of the rule testified June 9.

The EPA's insistence on moving forward with model trading rules to guide state implementation of the carbon dioxide standards for power plants (RIN:2060-AR33), which has been halted by the U.S. Supreme Court, and an incentive program for early investment in renewable generation and energy efficiency effectively force states to continue their compliance planning, Allison Wood, a partner at Hunton & Williams LLP who represents the power industry, told the Senate Environment and Public Works Committee.

States will still be forced to review the proposed Clean Energy Incentive Program and offer comments on the proposal or forgo their right to challenge the rule later, she said. “This fear effectively negates the relief provided by the stay,” Wood testified at the hearing.

The Supreme Court has already stayed the Clean Power Plan even though the rule will not be argued before the U.S. Court of Appeals for the District of Columbia Circuit until September ( West Virginia v. EPA, D.C. Cir., No. 15-1363, 5/16/16 ).

EPA Abiding by Precedent

Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, which is supporting the EPA in litigation over the Clean Power Plan, told the committee there is “ample precedent” for the EPA to continue its work despite the court's stay. Moreover, he said courts don't make decisions on tolling deadlines at the start of a lawsuit but only once it's concluded.

“Tolling decisions are made when a stay is lifted, not when a stay is put in place,” Revesz said.

But those tolling decisions often extended the compliance dates longer than the rules themselves were stayed, Wood said, citing the EPA's Cross-State Air Pollution Rule, which was stayed for nearly two and a half years before it was ultimately upheld by the Supreme Court. When the deadlines were eventually tolled, they were extended by nearly three years—longer than the litigation took—in order to coincide with the new calendar year, she said.

“You didn’t shorten it, you lengthened it,” she said.

Some States Moving Forward

Despite the stay, a handful of states are voluntarily making plans to comply with the Clean Power Plan should it be upheld and have sought assistance from the EPA as they prepare. Fourteen states have asked the EPA for additional guidance on the upcoming model trading rules as well as the soon-to-be-proposed Clean Energy Incentive Program, a voluntary matching fund for wind and solar power generation and demand-side energy efficiency measures in low-income communities in states that take early action toward meeting the Clean Power Plan targets.

That early planning will place those states on a better footing to meet their Clean Power Plan targets should the rule go into effect, said Katie Dykes, deputy commissioner for energy at the Connecticut Department of Energy and Environmental Protection and chairwoman of the Regional Greenhouse Gas Initiative (RGGI).

“Connecticut and the other RGGI states have some of the most aggressive Clean Power Plan targets in the country, but we’re well-placed to meet them because we’ve taken proactive action,” she testified.

However, the extraordinary nature of the Supreme Court's stay should give states a warning that several justices think that the rule is in significant legal jeopardy, Sen. James Inhofe (R-Okla.), the committee chairman, said.

“While a stay is not the final decision, it makes clear that the highest court in this country has serious reservations on the legal soundness of the rule,” Inhofe said.

Following the hearing, Inhofe sent a letter to the EPA asking whether it would abide by any tolling requirements should the Clean Power Plan ultimately be upheld.

To contact the reporter on this story: Andrew Childers in Washington at achilders@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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