As legal onslaught begins, EPA tells states how to buy time on climate rule

By Elizabeth Harball, Rod Kuckro | 10/26/2015 08:39 AM EDT

As expected, the publication of the final Clean Power Plan in the Federal Register on Friday brought on a swarm of lawsuits from opponents of the U.S. EPA rule.

As expected, the publication of the final Clean Power Plan in the Federal Register on Friday brought on a swarm of lawsuits from opponents of the U.S. EPA rule.

On Friday morning, West Virginia Attorney General Patrick Morrisey and Texas Attorney General Ken Paxton jointly announced a 24-state lawsuit challenging EPA’s rule. Later that day, Oklahoma Attorney General Scott Pruitt and North Dakota Attorney General Wayne Stenehjem announced their states are also challenging the rule, meaning that over half of U.S. states are opposing the Clean Power Plan in court.

Morrisey called the Clean Power Plan "one of the single most onerous and illegal regulations coming out of Washington, D.C., that we’ve seen in a long time."


EPA’s Clean Power Plan aims to slash carbon dioxide emissions from the U.S. power sector 32 percent by 2030. The rule’s supporters call it an essential step to rein in climate change, while its detractors call it too expensive and an example of federal government overreach.

In addition to the states, a number of industry groups also announced Friday they are challenging the Clean Power Plan in court, including the U.S. Chamber of Commerce, National Rural Electric Cooperative Association and National Association of Manufacturers. The Clean Power Plan also saw opposition in Congress shortly after it was formally published — on Friday, Senate Majority Leader Mitch McConnell (R-Ky.) said he and Sen. Joe Manchin (D-W.Va.) will file a resolution of disapproval under the Congressional Review Act this week designed to halt implementation of the rule.

EPA, the White House and their supporters on Friday expressed confidence that the Clean Power Plan will carry the day in court.

"The Clean Power Plan is grounded firmly in science and the law," EPA Administrator Gina McCarthy wrote in a blog post Friday.

EPA offers guidance on ‘simple’ process for state extensions

In addition to rebuffing claims that the Clean Power Plan is legally vulnerable, EPA leaders and staff are busying themselves helping states figure out how to implement the regulation.

As part of that effort, the agency released a memorandum last week to regional EPA directors on what states must include in their initial submittal with the agency next September if they want an extension to submit a final state plan in 2018.

Many, if not most, states are expected to file for an extension, acting EPA air chief Janet McCabe said at a conference of air regulators in Washington, D.C., last week. McCabe stressed that this process would not be onerous.

In the memorandum, EPA stressed that for a state to get an extension, the "process is simple and requires only that the state demonstrate it has taken certain preliminary and readily achievable steps towards the development of its plan."

It notes what must be included in the extension request, to be filed on Sept. 6, 2016: a description of the compliance approaches the state is considering, an explanation for why the state needs more time to submit a final plan and a description of how the state has reached out to interested parties for input.

Also, states that would like to participate in the Clean Energy Incentive Program, which gives early credit for the installation of wind energy, solar energy or energy efficiency in low-income communities, need to indicate interest in their initial submittals.

States that receive an extension must provide an update on their progress to EPA on Sept. 6, 2017, the memorandum notes.

EPA, which has repeatedly stressed the flexibility of the final rule, emphasized in the memo that states are in the driver’s seat for what they would like to include in their initial submittal.

"The actions enumerated in this memorandum and in the attachment serve to illustrate the wide range of choices states have in meeting the elements on which an extension request would be granted," the memorandum states.

"The opportunity for an extension is intended to support and promote a state’s ability to design a plan consistent with and responsive to state-specific circumstances and needs," it adds.