States fight to stop deadline clock on EPA’s mammoth Clean Power Plan

Aug 3, 2015: President Obama delivers remarks on the Clean Power Plan at the White House. (Reuters)

The U.S. Court of Appeals is likely to decide soon on a bid by 15 states to slow down the timetable of the Environmental Protection Agency’s sweeping plan to dramatically transform the U.S. electrical power system, which the states claim is intended to squeeze them into starting to commit themselves to vast changes before the rule that embodies the plan can be challenged in court—or has even been published.

A panel of the Appeal Court’s DC Circuit has ordered both sides to submit legal arguments before the Labor Day weekend on the lawsuit to stop EPA’s ticking deadline clock on what the states call “the most far-reaching energy regulation in this nation's history,” and which many of them argue could destabilize huge portions of the U.S. electrical power grid.

Under the so-called final rule EPA issued informally on Aug. 3 for what the agency calls the Clean Power Plan (CPP), all U.S. states have until Sept. 6, 2016, to submit preliminary strategies on cutting carbon emissions from their electrical power systems by 32 percent on average below 2005 levels—essentially mandating a massive conversion from coal-fired power generation to natural gas and renewable energy sources.

If EPA approves the proposals, the states would then get two more years to complete planning for the sweeping changes. If states fail to make the initial submission, EPA says it will offer up its own versions of what they will have to do.

By starting the deadline clock before publication in the Federal Register—which the lawsuit claims could take three to four months beyond Aug. 3 - the states charge that EPA at a minimum is forcing them to restructure priorities and prematurely throw thousands of hours of planning time at the rule before they can legally contest the plan and its 2018 final deadline.

For its part, EPA says that Federal Register publication is irrelevant, and that the “promulgation” of the rule on Aug. 3 - when EPA Administrator Gina McCarthy signed the rule and posted it on the EPA website - is what matters.

In a hint at another reason for EPA’s hurry-up schedule, an EPA statement says the plan “shows the world that the United States is committed to leading global efforts to address climate change”—a tacit reference to a United Nations-backed global climate change summit planned for Paris in December, where supporters hope to endorse a new legally binding treaty on greenhouse gas limits.

The dissenting states - they range from Florida and Louisiana to Michigan, Ohio and Indiana - have already condemned the huge plan as an unprecedented extension of EPA authority under a little-used section of the Clean Air Act, and an illegal intrusion on their own power to regulate electrical generation systems.

Almost all of them  add that the  mammoth scale of the imposed changes go much further than a proposed version of the rule published a year ago, and require five to 10 years to plan adequately and safely.

In many cases, they add, they simply do not have the legal authority to comply with the terms of the rule as they unofficially know it, without getting additional legislative authority that could itself take years to obtain.

Some of them point out they are already being greatly overstretched in struggling to comply with a blizzard of other EPA regulations governing ozone, methane, and other substances that are coming at them all more or less simultaneously.

The Appeals Court lawsuit, however, claims EPA is additionally cheating with its initial Sept. 26 deadline, which it says is a major departure from regular practice. The huge and complex rule—the text runs to 1,560 pages, with many attendant technical documents—has not yet appeared in the Federal Register, the normal starting point for agency deadlines.

CLICK HERE FOR THE LAWSUIT PETITION

Court rulings have established that Register publication is the point when legal challenges to the rule itself can be mounted.

EPA told Fox News the Clean Air Act provides that agency is “moving expeditiously to have the final rule published in the Federal Register,” and “contrary to Rehearing Petitioners’ baseless speculations of delay” it will be published “in the normal course” – without defining any time line.

An EPA spokesperson said current regulations “governing state plans under this part of the Act, which have been in place since the 1970s, provide states nine months to submit final state plans” and that the time periods allotted in the CPP were deliberately made longer.

But those regulations refer to responses to changes under the section of the Clean Air Act that were never on the massive scale of the new rule.

“If we were to wait on the EPA to get this rule published, it could be well into 2016 before the States complete arguments and receive a ruling on a request to stay this rule,” argued Patrick Morrisey, Attorney General of West Virginia, which is serving as lead plaintiff in the deadline lawsuit.

“By that time, many states will already be in the middle of drafting their compliance plans ahead of the September 2016 deadline. We want to ensure that no more taxpayer money or resources are wastefully spent in an attempt to comply with this unlawful rule that we believe will ultimately be thrown out in court.”

Dan Goldblatt, a spokesman for the Indiana Department of Environmental Management, said the carbon emissions goal his state faces by 2030 under the final rule “is nearly twice as stringent” as it was under the proposed version. Moreover, the amount of energy Indiana must generate from renewable sources under the new rule is about 20.5 per cent of the total — “equivalent to the current total generation capacity of nearly one-third of the states in the country.”

The need for state lawmakers’ approval of the huge changes makes the process even more convoluted, he noted. “Due to the timing of the [EPA] rule, we will not be able to take anything to our legislature until the 2017 session.  This means that we must commit to a plan in 2016 for which we will not have legislative approval at that time.”

“We feel so strongly that EPA has clearly overstepped its legal authority that once courts consider the rule, we maybe would not have to implement it to begin with,” Craig Butler, head of Ohio’s state Environmental Protection Agency, told Fox News.

But as matters stand, his agency is still in the process of a 30-day crash marathon--along with the state  public utilities commission, power generation operators, electrical grid operators and other “stakeholders”—to understand what the CPP actually says.

As part of the initial lawsuit filing, the protesting states offer a litany of complaints about the harm the fuzzy deadline is forcing on them to confront the hugely complex and interlocking plan—not only in terms of staffing demands, but in terms of over-hurried examination of the risks and multibillion-dollar costs involved in power systems that are already strained by new clean-air requirements.

According to a declaration from Kansas air quality authorities, for example, the state has made $3 billion in recent investments in pollution emission reduction equipment that will be wasted, along with six coal-fired generating plants, in any effort to meet the new rule.

Ohio’s Butler observes that “we have already seen over 6,000 megawatts of power shut off” due to a recent EPA rule governing mercury emissions from coal-fired plants, and there is a “sheer problem with infrastructure” to meet the new rule. Translation: the gas pipelines, and the gas, aren’t necessarily in the right place to match the new tasks.

“It is not as easy to replace coal with natural gas as it is to say it,” he told Fox News—especially without adequate time to study how to go about the challenge.

According to a submission by David Bracht, head of the Nebraska Energy Office—the former head of a legal firm’s renewable energy group and private-sector advisor on major wind and ethanol projects—the changes that states must propose “over the next calendar year will be irreversible and will impact the electric grid for decades.”

In Nebraska’s case, he declared, they would also disrupt an 80-year tradition of local public control of utilities and likely give unprecedented control instead to multi-state regional power authorities, which in turn would require “legislative and constitutional changes on the state level that may permanently alter the daily operation of utilities.”

In addition, he told Fox News by telephone, “it seems notable to me that many of the EPA’s deadlines do not reflect the long-term needs of the energy industry.”

Power generating assets “typically have lives of 50 years,” he said, while the planning horizons for transmission facilities can be 3-8 years.”  The switching of power sources envisaged by the EPA’s plan also means the planning, design and creation of “major backbone transmission lines where they do not currently exist.”

Nebraska gets about 50 percent of its electrical energy from coal, Bracht said, and under the earlier version of the EPA’s rule, it was supposed to cut 26 per cent of its carbon emissions from 2012 levels. In the final rule that the states are not litigating, the total jumped to 40 per cent.

And when it comes to shifting from coal to less carbon-emitting fuels like natural gas, he declared, “the coal-fired plant does not necessarily have a natural gas pipeline next to it for its replacement.”

“There are very few people in the United States who don’t expect the lights to work when they turn them on,” he said. “The kind of disruption this shift implies might test that.”

George Russell is editor-at-large of Fox News and can be found on Twitter:  @GeorgeRussell or on Facebook.com/GeorgeRussell