Legal challenges to U.S. EPA's proposed rule on power plant carbon won't be possible until a final version is released next year, but that hasn't stopped a number of states from laying foundations for resistance.
Nineteen states -- nearly all of which either produce or consumer significant quantities of coal -- have introduced resolutions targeting the proposed rule. Eleven states have introduced legislation related to the rule with six bills enacted so far.
While the language of the resolutions and bills runs the gamut from tentative support to outright opposition to EPA's authority, a common refrain among them is the desire for state primacy in developing and implementing plans, said Melanie Condon, a policy associate for the National Conference of State Legislatures, which is tracking state reactions to the proposed EPA rule.
"What we're hearing is that states want as much flexibility to address their implementation plans as possible," she said. "They know they have to comply with [Section] 111(d) [of the Clean Air Act], but they want to be able to take the lead."
The proposed rule released last week by EPA does provide states with a wide range of options in meeting emissions rate targets, electing for an "outside the fence line" approach that includes power plant upgrades, fuel switching, renewables and promoting energy efficiency.
But many of the bills and resolutions seek even more leniency, either urging EPA to consider less stringent compliance deadlines and emissions targets or, in the case of several bills, granting state administrators the right to come up with their own targets and deadlines.
That could put some states on a collision course with EPA. If a submitted state plan doesn't meet the agency's guidelines, then it falls to EPA to create and implement a plan in its place. And that option would likely be more onerous for all parties, said Bill Becker, executive director of the National Association of Clean Air Agencies.
"There's no state in the country that I know of that would rather have a federally implemented plan than develop a plan on their own," he said. "The prescriptive costs and consequences would be palpable."
Sketching battle lines
So far, no state has actively precluded itself from meeting the EPA guidelines. The majority of the resolutions emphasize that issues like energy security, reliability and diversity of supply are taken into account when coming up with a state plan. These are all issues that will likely be raised in future arguments over the carbon rule.
The Wyoming Legislature has taken perhaps the strongest stand against the agency's proposed rule, passing a bill that challenges EPA's rulemaking authority under the Constitution. Pending approval of the governor, the bill also authorizes the state attorney general to take action against EPA to block the implementation or enforcement of regulations.
A similar bill was introduced but failed in Idaho.
In April, Kentucky Gov. Steve Beshear (D) signed a bill into law that would establish carbon dioxide standards separate from those proposed by EPA, and on a plant-by-plant basis. That prompted criticism from some parties, including the Natural Resources Defense Council, which say that the state is pre-emptively limiting its own options.
Standards established around a plant's individual capabilities would not necessarily take options like renewable energy or demand-side energy efficiency into account, they say.
Even the state's Energy and Environment Cabinet expressed concern following the governor's signing, pointing out in a statement that "depending on how the bill is interpreted, it might indeed limit flexibility in developing a state-specific plan that would be approvable by EPA."
Asked about the intent of the law, Jim Gooch (D), a Kentucky state representative who sponsored the bill, said that he wanted to respond to "overreaches" by EPA.
"The president himself said, when he announced his carbon plan, that the EPA is supposed to work with states to reduce carbon," he said. "Under Section 111(d) of the Clean Air Act, states have primacy in meeting the guidelines, and we want to make sure those guidelines are feasible."
"I'm very concerned about reliability and affordability," he added. Speaking of coal, he said, "We're talking about moving away from a power source that's efficient, dependent, that you can stockpile on-site. You can't just replace that with sources of electricity that are only available part of the time, like wind and solar."
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