Comments made at the annual meeting of the National Association of Regulatory Utility Commissioners (NARUC) suggest that the regulatory group and the Environmental Protection Agency (EPA) have been in regular dialog throughout the process of developing the Clean Power Plan (CPP), arguably the most complex environmental regulation affecting the power generation sector and electric utilities.

EPA Administrator Gina McCarthy spoke today at the opening general session in Austin. In introducing her, NARUC President and Florida Commissioner Hon. Lisa Edgar said there had been “an unusual amount of outreach” from the EPA to regulators over recent agency regulations and the CPP in particular. The administrator followed up by saying that “NARUC has been a key partner of EPA’s . . . in a constructive way.”

McCarthy didn’t make news today with her comments, which largely noted the obvious—first, that publication of the final CPP in the Federal Register marked the “kickoff to litigation.” However, she said, “We’re really confident as we approach these legal challenges” because the rule, she said, is grounded in science and fact.

Nevertheless, she acknowledged, it is a “significant rule.” In answer to her own question of “What’s next?” she reminded the regulators that a status update from states seeking an extension to filing a state compliance plan is due September 2016. Mention of that as the next step suggests that an increasing number of states are indicating they will seek an extension.

In a short question and answer session following her remarks, Georgia Commissioner Stan Wise said his state is opposed to the rule as formulated, but he thanked McCarthy for interacting with NARUC and the states as they had. Then he asked if the agency would confirm that trees can be added to qualifying biomass under the CPP as a renewable fuel. McCarthy responded that he was not the only one to have raised the question of what biomass is approvable but did not indicate when clarification on that matter would be available.

Ohio Commissioner Asim Z. Haque posed the question of “leakage,” to which the administrator only half-jokingly responded, “Next question.” (To oversimplify, the matter of leakage involves, as McCarthy said, maintaining the integrity of carbon dioxide emissions reductions that are intended to be achieved under the CPP and the concern that power production might shift from existing generating units subject to Clean Air Act section 111(d) to new units, subject to 111(b), which could actually increase emissions. An entire subcommittee session was focused on the matter of leakage on Sunday.) The bottom line, McCarthy responded: “I don’t have a silver bullet.”

North Dakota Commissioner Julie Fedorchak registered her state’s disappointment that the increase in reduction goal from 11% in the proposed plan to 45% in the final “was anything but thoughtful.” McCarthy responded that the percentage changes in the final plan are not necessarily as meaningful as it would appear because, she said, the final rule also made other changes that provide added compliance flexibility, including multi-state trading programs and “trading-ready” approaches. Nevertheless, she said the EPA is “willing to work through issues with every state.”

For more on a discussion of multi-state trading programs, see “Regulators and Emissions Trading Experts Tackle Intricacies of Clean Power Plan Multi-State Solutions.”

The final question for McCarthy came from Texas Railroad Commissioner Ryan Sitton, who asked, “What is the role of Congress?” McCarthy replied that it is twofold: First, Congress “provided a Clean Air Act” and, second, “Congress has an ability to address climate change today, if they choose to do that.” She continued, “Right now, that doesn’t seem to be where we are at,” so responsibility to address the issues lies with the EPA under the Clean Air Act.

—Gail Reitenbach, PhD, editor (@GailReit, @POWERmagazine)