Legal & Regulatory

Clean Power Plan in Federal Register Oct. 23, Clock Starts Ticking

In a media briefing this morning on the Clean Power Plan, Janet McCabe, acting assistant administrator for the Environmental Protection Agency’s (EPA’s) Office of Air and Radiation made no announcement of major changes but did note that the final rule will be published in the Federal Register tomorrow, Friday, October 23. That publication starts the clock on expected lawsuits as well as the 90-day comment period on the proposed federal implementation plan and on model rules.

McCabe noted that what critics called a delay in publication was “a routine, standard process” that actually moved quite quickly, in her view, as it involved checking “three packages” for typos, formatting problems, and the like. The three packages are the final Clean Power Plan, the proposed federal plan for implementation (used if states do not develop their own implementation plan), and the proposed model rules (for use by states developing their own plans). There were “no substantive changes” between the prepublication version and the version that will be published in the Federal Register, she said.

EPA staff have been working with all states and other stakeholders since the August 3 release of the final rule, McCabe said. Two specific issues have presented the most questions: details concerning states’ initial submittal for an extension on their state implementation plans and questions concerning the Clean Energy Incentive Program (CEIP). States have until September 2016 to file their initial request for an extension and then, if approved, up to September 2018 to submit their final plan.

When asked how many states have inquired about an extension, McCabe said it had been “a general topic of conversation” and that “many states” are expected to file for an extension.

Questions concerning the CEIP have centered around the criteria for eligible projects and how to distribute allowances among states. McCabe said the EPA will be holding calls in November and December to share information on those issues.

When asked by Amy Harder of the Wall Street Journal about the claims that the Clean Power Plan is on shaky legal ground, McCabe responded that the agency believes its application of Clean Air Act Section 111(d) conforms with the agency’s authority under that act. In September, the U.S. Court of Appeals for the D.C. Circuit denied a request to stay the rule on the grounds that petitioners had not satisfied “the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action.”

McCabe noted that EPA staff are attending numerous events to share information and respond to questions about the plan. POWER is sponsoring one such event, a one-day conference on legal and compliance issues concerning the Clean Power Plan and other recently finalized federal environmental regulations on December 7 at the Mirage in Las Vegas. Navigating Legal Implications of Power Industry Regulations, designed for generating companies and their industry partners, includes leading energy and environmental legal experts as well as a keynote by EPA General Counsel Avi S. Garbow.


Gail Reitenbach, PhD, Editor (@GailReit, @POWERmagazine)

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