EPA: Clean Power Plan Extensions Not a ‘Heavy Lift'

By Andrew Childers and Patrick Ambrosio

Oct. 21 — The Environmental Protection Agency has intentionally set a very low bar for states seeking a two-year extension to submit plans to implement the Clean Power Plan, the agency’s top air pollution official said.

Janet McCabe, the EPA’s acting assistant administrator for air and radiation, told the Environmental Council of States Oct. 21 that receiving the extension is deliberately “not intended to be a heavy lift.”

“We understand that it may be every single state that needs to seek an extension. There’s a lot of work for states to do and a lot of different processes,” McCabe said.

The criteria for receiving that extension has been one of the most frequent questions state regulators have asked the agency, McCabe said.

The EPA Clean Power Plan (RIN 2060-AR33) sets unique carbon dioxide emissions standards for the power sector in each state that will be phased in between 2022 and 2030. State plans are due to the EPA by Sept. 6, 2016, but they can seek a two-year extension if they make an initial submittal to the agency detailing its work toward implementing the rule.

By its nature, that initial submittal will be much less detailed than a state’s plan, McCabe said.

“This is not an initial plan. This is an initial submittal,” she said.

States Urged to Comply 

States, even those opposed to the EPA’s rule, were encouraged to develop their own plans to implement the carbon dioxide standards.

William Reilly, who served as EPA administrator from 1989 through 1993, advised states to move ahead with implementing the Clean Power Plan despite pending legal challenges and widespread opposition to the rule among Republican presidential candidates. Reilly currently serves as a senior adviser at TPG Capital LP.

Reilly said governors and state legislatures should not prohibit their state regulatory agencies from submitting plans to the EPA for implementing the Clean Power Plan, a move he described as “a bad idea.” He predicted that governors and legislatures will eventually relent and allow for the submittal of state implementation plans, because they won’t want to see the EPA come in with a federal plan that would make implementation decisions.

“They may be partisan, but they’re not stupid,” Reilly said.

Texas and Oklahoma Could Comply 

Texas—expected to be one of the leading opponents of the rule—has not ruled out developing its own plan to implement the rule

“We are developing a response,” Bryan Shaw, chairman of the Texas Commission of Environmental Quality, said. “We have not taken anything off the table.”

Oklahoma Gov. Mary Fallin (R) has said the state will boycott compliance with the standards. However, Michael Teague, the state's secretary of energy and environment, said the state has explored its compliance options. Particularly, he said the mass-based compliance option seems promising.

West Virginia Attorney General Patrick Morrisey (R) told Bloomberg BNA that West Virginia and other states that oppose the Clean Power Plan intend to file new challenges to the rule the day it is published in the Federal Register. 

Though Texas may pursue its own compliance plan, Shaw still questioned the legality of the EPA’s rule given Congress’s failure to pass a cap and trade program for carbon dioxide legislatively.

“If my legislature doesn’t give me authority, I don’t do it,” he said. “That’s the rule of law.”

The EPA proposed a model federal plan for implementing the Clean Power Plan that would cap state emissions and establish a carbon dioxide trading program for power plants.

However, states have said that decisions on trading will be significantly affected by what their neighbors choose to do. 

Flexibility Praised 

A White House official said during the ECOS meeting that one of the goals of the Clean Power Plan was to give states as much flexibility as possible in implementing the rule.

Megan Ceronsky, senior policy adviser at the White House Office of Energy and Climate Change, said the rule includes two distinct pathways that states can use to achieve their emissions reductions. States can either put together a very structured plan that specifies everything that will happen by 2030 to achieve the state emissions target or use trading mechanisms to meet their carbon emissions goal, Ceronsky said.

The trading option will allow states to be more responsive to changes on the ground, Ceronsky said. She highlighted fluctuations in the cost of natural gas and changes to the economics of wind power as examples of the types of power market factors that states would be able to respond to under a trading program.

Former EPA Administrator Christine Todd Whitman, who is now co-chair of the Clean and Safe Energy Coalition, said the EPA has encouraged states to be as flexible as possible in reducing power plant emissions, going “about as far as anyone” would be able to go under the Clean Air Act.

“EPA has done the best job I believe it can do in providing flexibility under this rule,” Whitman said.

With publication of the final Clean Power Plan expected shortly, McCabe said the EPA has turned its focus toward helping states make their implementation decisions.

“I would say, from my perspective, that we are off and running about the business of implementing the Clean Power Plan,” she said. “We will be there every step of the way unless you don’t want us there on some of those steps.”

To contact the reporters on this story: Andrew Childers and Patrick Ambrosio in Washington at achilders@bna.com and pambrosio@bna.com

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