State Field Likely Set for Clean Power Plan Legal Fray

By Anthony Adragna

Nov. 10 — Just five states are not currently involved with litigation on the Environmental Protection Agency's Clean Power Plan and at least two of those—Pennsylvania and Nevada—don't plan to enter the legal fray.

Both Pennsylvania and Nevada have concluded developing state implementation plans for implementing the carbon dioxide emissions cuts for existing power plants will maximize flexibility and have already begun work on them, spokesmen for Govs. Tom Wolf (D-Pa.) and Brian Sandoval (R-Nev.) told Bloomberg BNA Nov. 9.

“In the interest of the state's energy future and ratepayers, I have asked the Nevada Division of Environmental Protection to draft a plan of compliance for the Clean Power Plan rule,” Sandoval said in a statement to Bloomberg BNA. “By pursuing this strategy, we will avoid the automatic implementation of a federal plan and provide Nevada with the best opportunity to develop a proposal that will utilize the state's portfolio of clean energy resources.”

Idaho Gov. C.L. “Butch” Otter (R), whose state is also currently not involved with the proceedings, told Bloomberg BNA in a statement he is “continuing to assess what role if any Idaho will play in this lawsuit going forward.”

Twenty-seven states have already challenged the regulation in the U.S. Court of Appeals for the District of Columbia Circuit, while a coalition of 18 states and other major cities have intervened to defend the Clean Power Plan (West Virginia v. EPA, D.C. Cir. , No. 15-1363, motion filed 11/4/15; (213 ECR 213, 11/4/15).

The EPA's Clean Power Plan (RIN 2060-AR33) sets carbon dioxide emissions limits for the power sector in each state that will be implemented by state regulators.

Pennsylvania Moving Quickly

Neil Shader, press secretary for Pennsylvania's Department of Environmental Protection, told Bloomberg BNA the state intended to begin developing its plan to comply with the regulation Nov. 13 right after the public comment period ends (198 ECR 198, 10/14/15).

“The administration is focused on moving forward with writing a strong, well-tailored state plan, which is why we have spent the past several months engaging the public, industry stakeholders, legislators and more at 14 listening sessions across Pennsylvania,” Shader said. “The goal is to craft a state plan that will work for Pennsylvania and will stand on its own merit.”

Both Idaho and Tennessee, also not currently involved with the litigation, say their states have “unique circumstances” that mean the Clean Power Plan will affect their states in different ways than most of the rest of the country.

“Idaho is impacted by this rule differently than many of the other states involved in the lawsuit because we have no coal-fired generating plants but instead import energy produced from coal,” Otter said. “Nonetheless, I am very concerned that the EPA is moving forward with the Clean Power Plan because it lacks jurisdiction and is infringing on a role traditionally left to the states.”

Harlow Sumerford, communications director for Tennessee Attorney General Herbert Slatery III, told Bloomberg BNA Nov. 10 his state was unique because it got most of its power through the Tennessee Valley Authority, a federally owned corporation.

“We have consulted with the Tennessee Department of Environment and Conservation and are finalizing our review of the rule, which includes considering alternatives,” Sumerford said. “Our review of the rule is largely impacted by the impact it has on TVA, which differentiates us from other states.”

Alaska, which is exempted from the final Clean Power Plan, is also not participating in the litigation and did not respond to multiple requests for comment.

Rule ‘Not Based in Reality.'

Separately Sen. Joe Manchin (D-W.Va.) slammed the EPA's carbon dioxide emissions limits for new power plants (RIN 2060-AQ91) in a letter to the agency as “not based in reality” and said recent media reports of a struggling Canadian project further support the notion that carbon capture and sequestration technologies are not “adequately demonstrated.”

“EPA should recognize that it has erred by once again prescribing a technology that has not been adequately demonstrated,” Manchin wrote to EPA Administrator Gina McCarthy. “I am completely sympathetic to the need for standards to be ‘technology-forward'; however, imposing requirements that are commercially impractical is unreasonable.”

In its final rule, the EPA set a carbon dioxide emissions limit of 1,400 pounds per megawatt-hour for new coal-fired power plants. Meeting that limit would effectively require at least the partial use of carbon capture and sequestration technologies. The EPA partly based that decision on the operation SaskPower International Inc.'s Boundary Dam Integrated Carbon Capture and Storage Project, which began operations in 2014 (62 ECR, 4/1/15).

Manchin further called for the EPA to immediately “rescind” the final regulation and “allow the U.S. coal industry out from under this unfair regulatory overhang.”

To contact the reporter on this story: Anthony Adragna in Washington at

To contact the editor responsible for this story: Larry Pearl at