EPA advised to give states notice before release of Clean Power Plan

By Rod Kuckro | 06/09/2015 08:09 AM EDT

NEW ORLEANS — U.S. EPA would be doing a service if it were to give states a heads up a day or two before it releases the final version of the Clean Power Plan, the head of a major stakeholder group told utility executives here yesterday.

State regulators, political leaders and utilities "need advance knowledge so we can respond intelligently to the rule" when it is issued, said Alexandra Dunn, executive director of the Environmental Council of the States, which represents state environmental agencies.

EPA is slated to release the final version of its Clean Power Plan to slash carbon emissions from existing power plants in August. The agency’s sweeping remake of the way the nation produces electricity is under review at the White House Office of Management and Budget.


Dunn was at the Edison Electric Institute annual meeting here as part of a panel discussion on untying the "Gordian Knot" posed by compliance challenges with the EPA rule, crafted under the authority of Section 111(d) of the Clean Air Act.

Dunn added her voice to a growing chorus of regulators and others who want some systematic review of the compliance plans that states submit for the EPA rule. "We need some sort of centralization of review happening with these plans," she said.

If the plans are submitted to one of the 10 EPA regional offices, "we’re going to end up with a real backlog" as some utilities operate in multiple EPA regions, Dunn said.

A solution would be for EPA to put in place "an appropriately trained and empowered team to review these plans, kind of like a SWAT team, because every plan is going to contain novel issues."

There was a consensus that the scope of the proposed rule by EPA was unparalleled. "It’s dragging everything else behind it," quipped Gerry Anderson, CEO of DT Energy, who moderated the panel.

There was also agreement that the rule is unlikely to be derailed by pending or future legal challenges.

"This is going to move forward," Dunn said. There is no "white knight" in the guise of a three-judge panel waiting to intervene on behalf of the rule’s opponents, she said.

EPA has been ‘very careful’ in ‘covering their legal bases’

She pointed out that EPA has been successful in cases that lay the foundation of the Clean Power Plan, including a ruling by the Supreme Court that the agency could regulate carbon emissions under the Clean Air Act. "The bottom line is they’ve followed the legal steps to do this," she said.

"Here’s what someone at EPA told me: ‘This is one where every legal argument against this rule has been laid out from day one. There are no hidden, gotcha arguments,’" Dunn said.

With 49 attorneys working full-time on the final rule, Dunn said, EPA is "going to release a rule that is as shored up against legal challenge as possible."

"I think they will address a lot of the things that people have raised. And I think they will make very clear that their authority is over the [electric generating units] owned by utilities," she said.

Nonetheless, stakeholders will have to wait about three years to see a ruling from the D.C. Circuit on an inevitable challenge, and by the time it might reach the Supreme Court, "we will probably not have the same court that we have today" because of retirements, Dunn said.

"I wouldn’t put high odds on it, either," Anderson said, because EPA has been "very careful from the outset in trying to cover their legal bases."

Courts "will give them all the deference," he said. "I’m not counting on [the rule being reversed], and I don’t think many people in the industry are, either."

Joshua Epel, chairman of the Colorado Public Utilities Commission, was the most succinct in his contribution to the panel’s discussion. "I think we’re all tired of discussing the Clean Power Plan, and we just want to see the final rule," he said.