Almost 2 and a half months after the Clean Power Plan was released, it has finally become the law of the land. Today, the Clean Power Plan was published in the Federal Register, an important procedural step that not only makes the rule official but also opens the period when the rule becomes subject to Congressional review under the Congressional Review Act. Additionally, the publication of the rule marks the beginning of what will likely be a slew of legal challenges from industry and historically coal-dependent states.
Publication of the rule also means that the regulatory clock has begun and states must formally begin to create their compliance plans. Under the rule, states will have to submit either a final plan or an initial plan and a request for extension by September 6, 2016. If the Environmental Protection Agency (EPA) grants a state’s extension request, that state will have until September 6, 2018 to submit a final plan. All states must have a final plan submitted to EPA by September 6, 2018 or else be subject to a federal compliance plan created by EPA.
Even before the final rule was released earlier this summer, industry groups and coal-friendly states were already filing lawsuits challenging the rule as EPA overreach and contrary to the Clean Air Act. Although these lawsuits were correctly found to be premature, many of the same players have already rushed to the courthouse today to file challenges. So far, we’ve seen a coalition of Attorneys General file a Petition for Review claiming that EPA does not have the authority to regulate carbon dioxide emissions from fossil fuel plants and that EPA’s actions are arbitrary and capricious, among other issues. State Attorneys General from the Southeast included in today’s petition are Alabama, Florida, Georgia, Kentucky and South Carolina. North Carolina’s Department of Environmental Quality, and not the Attorney General, joined the petition as well and signaled that the regulators and not the state are the ones taking issue with the rule.
It bears repeating that the Clean Power Plan is the end of a long effort to establish EPA’s authority to regulate carbon dioxide emissions from fossil-fuel plants, going all the way back to the Supreme Court’s 2007 decision in Massachusetts v. EPA that found that carbon dioxide is a pollutant subject to EPA authority. Despite this well-established regulatory principle, industry will continue to try and undercut this important public health regulation to protect their own pocketbooks. Congress will join the melee, but any action there is likely to fail given that 1) disapproval of a rule under the Congressional Review Act requires Presidential approval and 2) only one rule has been disapproved since the Act was enacted in 1996.
SACE will continue to track these legal challenges and any actions taken by Congress and bring you updates. SACE continues to work with utilities and regulators to demonstrate how increasingly cheaper clean energy resources can not only help states comply with the Clean Power Plan, but can also help foster stronger state and local economies, protect the health of our region and help families save money on utility bills. Learn more about how SACE is engaging on the Clean Power Plan through this video –