AGs Tell EPA to Halt Aid to States Planning Clean Power Plan Compliance

The Environmental Protection Agency (EPA) must halt its drive to help states supportive of the Clean Power Plan to comply with the rule because it defies the Supreme Court stay, the attorneys general for West Virginia and Texas have urged the agency.

An April 28 request to the agency by 14 states seeking technical assistance and information related to the Clean Power Plan fails “to accord proper respect for the Supreme Court’s unprecedented decision” to halt the rule, West Virginia Attorney General Patrick Morrisey (R) and Texas Attorney General Ken Paxton (R) told EPA Acting Assistant Administrator Janet McCabe in a May 16 letter.

The Supreme Court’s stay issued on February 9 by a 5–4 vote divests the EPA of “authority to enforce the rule and calls into serious question the rule’s legality,” the letter says. That’s why the EPA should decline the invitation from the state environmental agency officials to “continue to spend federal taxpayer dollars” to help with planning for compliance with the rule, it says.

Morrisey and Paxton specifically urged the EPA to cease action on the Clean Energy Incentive Program (CEIP)—a voluntary program for states to incentivize renewable and energy efficient projects—and non-final model carbon trading rules. The agency in late April sent proposed details of the CEIP to the White House Office of Management and Budget (OMB) for review. Congressional Republicans are also grilling the agency on the legal basis for proceeding with the regulatory proposal to implement the CEIP.

“Any effort to force States to take actions on the CEIP or the carbon trading rules—for example, by setting deadlines for state action while the stay is in place—would clearly violate the Supreme Court’s order. Indeed, we believe any actions that trigger deadlines for notice-and-comment or petitions for review would improperly compel action by States,” the attorneys general said.

But even if no actions were triggered, the EPA’s action calls into question “the EPA’s commitment to the Supreme Court stay order,” they alleged. “Because the CEIP and the carbon trading rules have no legal significance without a legally effective Power Plan, efforts to push these programs forward at this time can only be understood as an attempt to make the Power Plan a fait accompli and to undermine the Supreme Court’s order.”

The attorneys generals, which led the coalition of 27 states that obtained the Clean Power Plan stay, urged the agency to consider that 20 states have decided to suspend planning efforts in compliance with the high court’s order.

The EPA told POWER on May 25 that it is reviewing and will respond to the letter. “Many states and tribes have indicated that they plan to move forward voluntarily to work to cut carbon pollution from power plants and have asked the agency to continue providing support and developing tools that may support those efforts, including the CEIP,” it said.

Sending the proposal with details about the optional CEIP to the OMB for interagency review was a “routine step and it is consistent with the Supreme Court stay of the Clean Power Plan,” it explained. “The proposal is informed by an extensive public outreach and engagement process that began late last year and has included engagement with hundreds of interested stakeholders.”

The agency also noted that the “tremendous momentum in the transition” of the U.S. energy sector was market-driven. “These market signals speak for themselves. The Clean Power Plan isn’t driving these shifts; it was designed to underpin them. Even without the Clean Power Plan in place yet, they’re happening anyway,” it said.


Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)


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