Southern states rally for ‘line in the sand’ on EPA’s Clean Power Plan

By Kristi E. Swartz | 07/20/2015 08:54 AM EDT

SAVANNAH, Ga. — Momentum is building across the Southeast toward a “just say no” campaign for U.S. EPA’s final Clean Power Plan rule, expected to be released within weeks.

SAVANNAH, Ga. — Momentum is building across the Southeast toward a "just say no" campaign for U.S. EPA’s final Clean Power Plan rule, expected to be released within weeks.

A panel of lawmakers at the Southern Legislative Conference (SLC) yesterday passed a resolution urging state attorneys general to sue EPA over the rule that targets existing power plants. Broadly, the rule calls for a 30 percent reduction in carbon emissions by 2030, but targets for states vary.

States will have to write their own plans on how they are going to reduce their power sector CO2 emissions. If they do not, EPA will write the plan for them.


Del. Rupert "Rupie" Phillips, a Democrat from West Virginia, wrote the resolution, which passed SLC’s energy and environment committee. His original measure urged states to not submit plans with EPA, but a compromise was struck to direct attorneys general to take legal action first.

"It’s time to draw a line in the sand," Phillips said. "The EPA is pushing us around like they are a bunch of punks. I just want the states to stand together and say ‘no.’"

A chief concern about refusing to file a plan is having EPA write one instead, said Arkansas State Rep. John Baine, a Democrat.

"As a state, I’d much rather have a plan that I got to pick," Baine said.

The SLC is the largest of four regional legislative groups that operate under the Council of State Governments. Its 15 member states stretch from West Virginia to Texas and includes Kentucky, Missouri and Oklahoma. Its policy and positions committee is expected to vote on the Clean Power Plan resolution today.

Yesterday’s discussion, part of SLC’s four-day annual meeting, was the second debate over how states should respond to the Clean Power Plan. Presenters to the Southern States Energy Board (SSEB) on Saturday encouraged members to call the White House and share the group’s concern over the pending rule.

Presenters said they were encouraged by the number of states planning to sue once the rule is released.

"We ask that you look to your states as an action of this group, to your attorneys general, to your governors to see if we can get as many states as possible to file litigation, joint litigation to the EPA on this," said Randy Eminger, vice president of the South region for the American Coalition for Clean Coal Electricity (ACCCE). "The more we have, the better."

Eminger said ACCCE tallied 18 states ready to sue as soon as possible. In the Southeast, that includes Alabama, Arkansas, Georgia, Kentucky, Louisiana, North and South Carolina, Texas and West Virginia, according to a map posted at SSEB’s legislator briefing.

The governors or attorneys general of roughly double that amount have at least "expressed concern" over whether the proposed Clean Power Plan, which focuses on Section 111(d) of the Clean Air Act, is legal, he said.

"There are a large group of states that are really vocal," he said.

The nonprofit SSEB covers 16 Southeastern states as well as the U.S. Virgin Islands and Puerto Rico. Board members include governors and lawmakers from the largely conservative region.

Some states opt for legislative review plans

For a region that contains states that are dominated by the coal industry, the proposed rule has been a tough pill to swallow. That was evident all throughout Saturday’s meeting where speakers constantly referred to the Clean Power Plan as "overreaching regulation" and accused EPA of overstepping its boundaries and interfering with state authority.

Some states, including Arkansas and West Virginia, already have decided a way around that by passing laws that require a number of state agencies to review the plan. Then lawmakers have to sign off on compliance plans before sending them to EPA.

"Any attempt has to be approved by the elected officials who are closest to the people of West Virginia," said state Del. John McCuskey, referring to West Virginia’s House and Senate. "The [Department of Environmental Protection] will create a plan, if we don’t like it, it ain’t going to Washington."

Mack McGuffey, a partner with the Troutman Sanders law firm, urged any states that are thinking about not writing a plan to reconsider. "Just say no" should not mean "don’t file anything," it means writing a plan that follows the Clean Air Act, he said.

"Submit a plan, but submit a plan that follows the law, not necessarily the plan that the EPA is asking you to submit," he said.

He’s expecting lawsuits with as many as 300 to 500 petitioners.

McGuffey dismissed whether EPA is writing the Clean Power Plan in a way that would encourage citizen lawsuits that just end up giving the rule more teeth. But he said the agency likely is going to lean on environmental groups to make sure states comply with their individual plans.

This is because McGuffey doesn’t think EPA has the resources to make sure every individual state stays on target. But the army of environmental groups do, he argued.

"What EPA is going to be looking for in every state’s plan is how enforcement is going to happen, and certainly citizen enforcement is going to have to be a part of that, I think in EPA’s eyes, because they want to keep the pressure on," he said.

One supporter

One state and SSEB member that sent EPA a letter in support of the Clean Power Plan was Maryland. That was when Martin O’Malley, a Democrat, was governor.

Gov. Larry Hogan, a Republican, has not sent anything one way or the other, said Ben Grumbles, Maryland’s environmental secretary.

"We’re waiting to see what the final rule is," he told EnergyWire.

Maryland is a member of the Northeast’s Regional Greenhouse Gas Initiative (RGGI), which some have pointed to as a way for other states to approach the Clean Power Plan (Greenwire, July 14). For Maryland, being a member of RGGI has led to more than $300 million in revenue for the state.

"We recognize there have been benefits to being in [RGGI], and there may be greater benefits once the Clean Power Plan is issued," he said.