EPA lawyer looks to sway an apprehensive power industry

By Ellen M. Gilmer | 12/08/2015 08:35 AM EST

LAS VEGAS — On a mission to build bridges with the power industry, U.S. EPA’s top lawyer came out swinging yesterday against the politicization of the agency’s latest environmental rules.

"Almost all the rhetoric is completely unfounded even though no doubt it’s pleasing to many of the critics’ ears," EPA general counsel Avi Garbow said. "The purpose of raising this is because if you’re in the business to solve problems, sound bites do not lead to solutions."

Garbow was at a POWER magazine conference addressing about 50 lawyers, consultants, engineers and others in the power industry worried about the impact of EPA’s sweeping Clean Power Plan and other new regulations. His message: Now is the time for collaboration and optimism in the industry.

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"When we focus a little bit less on what the rules do to you and actually on what the rules can do for you — and obviously, from the environmental protection standpoint, for others — I think you’re going to be better positioned overall to really identify new opportunities and solutions and directions to find some business success," he said. "Your orientation … is really going to give you the advantage to see opportunities rather than constraints here."

Such assurances were generally met with a side eye from industry, with several in the audience raising familiar questions about the Clean Power Plan’s effect on grid reliability and industry’s burden of complying with the numerous other new or enhanced regulations simultaneously, including National Ambient Air Quality Standards and requirements for regional haze, ozone and mercury.

Piling on?

Phoenix-based attorney Michelle De Blasi, of Gammage & Burnham, voiced the frustration of many in the room by asking Garbow how the agency is balancing the multiple rules to ensure that the industry can realistically manage the weight of several new requirements at once.

Garbow acknowledged the volume of new rules for the industry and explained that what may seem like a cascade of regulation is in large part a result of statutory mandates and unmet deadlines.

"If you think about the built-in cycles or timelines for many of these rulemakings, we are arguably late on many of them — in fact, that’s why so many of them are coming out recently," he said, adding later: "What we ended up with certainly in this administration are a lot of these big-ticket rules happening at or near the same point in time."

But Garbow was quick to highlight what he sees as advantages of the timing. Most importantly, he said, all the rules were crafted under the same leadership, with advisers focusing on the interactivity between them.

"If you look [at compliance timelines] for all these statutes, you’d see a tremendous degree of alignment and glide path for almost every one of these to make sure that facilities and companies can make investment decisions and planning choices mindful of all these things at the same time," he said.

De Blasi remained unswayed by Garbow’s optimism, telling EnergyWire that she hoped there was an opportunity for cohesion but that certain conflicts will be unavoidable. In Arizona, for example, a significant switch from the state’s major coal resources to natural gas for electricity would emit less carbon but more nitrogen oxides, she noted. NOx is a precursor to ozone, and Arizona is already struggling to meet EPA’s ozone standards.

"It makes it more difficult for utilities to comply given these time frames," she said.

State plans

On the issue of state compliance with the Clean Power Plan, however, EPA and the power industry representatives here were largely on the same page.

"I also don’t think [legal challenges] should elicit from anybody in the regulated community the assumption that it is anything less than a final rule," he told the crowd. "To treat them as uncertain, I think, is wrong and risky. I think that it can weaken rather than strengthen your business position."

Industry lawyers here largely agreed, repeatedly stressing the importance of moving forward on state implementation plans, despite any remaining uncertainty surrounding the litigation.

"It’s a gamble for us to sit back and say maybe the litigation will take care of this," Greenberg Traurig attorney Michael Cooke said in a presentation. "This is a final rule. It’s the law of the land, and I think it behooves people to really try to get involved and be working on this."

To date, most states challenging the rule in court are also working on implementation plans, abandoning their previous pledges to "just say no" (ClimateWire, Nov. 9).

But where states have dragged their feet on implementation plans or political leaders have vowed noncompliance, Hunton & Williams attorney Allison Wood advised utility industry players to put pressure on naysayers.

"The first thing you want to try to do is convince the state to act, because I think the state acting on its own is preferable to EPA walking in and doing it for you," she said. "The next best thing would be to really focus and do a good set of comments on the proposed federal plan, recognizing that that will probably be your compliance plan."

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