by Chaim Mandelbaum
FME Law Counsel
In June 2015, the D.C. Circuit decided In RE: Murray Energy, that challengers to the EPA planned carbon regulation would have to wait until EPA released the final rules to bring legal objections to these harsh regulations. On August 3rd, EPA released the final version of its Clean Power Plan, which proved to be even more divisive than the original proposal.
From the outset the Clean Power Plan required individual states to meet carbon emissions reductions standards based on energy production and consumption profiles for two subcategories of existing fossil fuel-fired electric generating units (“EGUs”): coal- and oil-fired units and natural gas-fired combined cycle generating units. EPA would impose an emissions reduction goal for each state based on that state’s power generation structure, but allow each state to propose a plan on how to achieve the goal. The states must develop implementation plans describing the means by which they will meet their goals but the states are allowed to use emissions trading schemes to meet their goals. The federal plan, which serves as a backstop for state plans, contains enforceable emission limits for individual affected power plants. States must begin to cut emissions by 2022 at the latest and must continue cutting emissions through 2030.
The final rules EPA rules proved to be even harsher than the original proposal. Although they delayed initial implementation for two years, to 2022 from 2020, they still require states to submit initial plans by 2016 and final plans by 2018, or else the EPA will impose its own plan on the state. Moreover the EPA increased the target goal for carbon reductions to 32% below 2005 levels by 2030, up from the originally planned 30% in reductions. Despite numerous issues raised, including in comments submitted by The Energy and Environmental Legal Institute, regarding the technical and legal viability of mandating the use of Carbon Capture and Sequestration (CCS) technology, EPA decided to retain the requirement that new coal-fired generation units install CCS, though the plan does mandate a lower level of CO2 capture than did the proposed rule.
The legal battle over the new rule has already begun, although it has not yet even been formally published in the Federal Register. Sixteen states already appealed to EPA for an administrative stay of the final rule, which would delay implementation until a Court could review legal challenges to the regulation. After failing to hear from EPA on the request for the stay, fifteen states sought an emergency stay with the D.C. Circuit in order to delay the implementation of the regulation’s deadlines coming into effect until the Court can review the rule. Once the rule is formally published in the Federal Register, there will be 60 days in which parties can petition the D.C. Circuit to review the rule, and many groups, including E&E Legal, plan to do so.