Challenges Ahead for Clean Power Plan, Another EPA Rule

Less than two weeks after President Obama announced the U.S. Environmental Protection Agency’s (EPA) final Clean Power Plan rule, aimed at cutting carbon emissions from existing power plants 32 percent from 2005 levels by 2030, EPA Administrator Gina McCarthy has encouraged states to comply with the plan through emissions trading opportunities—emphasized far more in the final rule than the draft proposal.

It appears that some states may be examining whether they have trade-ready elements in common with other states. If so, they will be able to swap emissions credits with those states in order to comply with the rule.

“There’s been a lot of discussion, particularly in the West, where states are more loosely connected across the electricity grid, about an arrangement where states could adopt some common elements, and thereby allow the compliance entities in that state to trade among states that might not have submitted a joint plan but still have common elements in their plans,” said Colin McConnaha, a greenhouse gas specialist with the Oregon Department of Environmental Quality.

Despite the final rule’s flexibility, legal challenges are expected (subscription). Bill Bumpers, a partner at a law firm representing power companies, estimates 22–26 states are considering such challenges, a decision he called “more political than practical.”

The focus of many of these legal challenges, in my opinion, may very well be section 111(d) of the Clean Air Act. I spoke with MetroNews Talkline on this issue Wednesday, noting:

“The way the Clean Air Act is set up is that the traditional pollutants like ozone and particulates are regulated under one provision, what they call the hazardous air pollutants like mercury are regulated in a second provision and then there is this third provision, 111 that says if it is not covered under one of the first two then —> Read More