Let the Planning Continue, Part 1: With Lawsuits as Backdrop, States Make Progress on Clean Power Plan

Posted by Frank Swigonski and Caitlin Marquis on Nov 18, 2015 6:05:24 PM


This blog post is the first in a two-part series on states’ progress towards compliance under EPA's Clean Power Plan, and a follow-up to an earlier two-part series on states’ initial reactions. Check out Part 2 here. Check out the earlier series here and here.

The publication of the final Clean Power Plan (CPP) in the Federal Register on Oct. 23 prompted a suite of suits from states, both in opposition and in support of the rule. This post provides a scorecard on the states currently involved in the legal action — 45 in all — and tracks the progress being made in states that support the CPP or are simply quietly moving ahead on compliance. Tomorrow’s post will look at the progress being made in states that are suing EPA, which is significant.

West Virginia AG Patrick Morrisey and Texas AG Ken Paxton led a group of 24 states in filing both a petition for review of the final rule and a motion for stay and expedited consideration. Oklahoma AG Scott Pruitt, North Dakota AG Wayne Stenehjem, and the Mississippi Department of Environmental Quality each filed their own suits and stay requests. A representative for Pruitt said Oklahoma filed separately in order to include a legal brief outlining specific objections to the rule, while Stenehjem explained that unique circumstances in North Dakota — including an increase in its target under the final rule — justify a separate lawsuit.

The 27 Attorneys General (and/or state agencies) currently involved in fighting the CPP are Alabama, Arizona (and the Arizona Corporation Commission), Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana (and the Louisiana Department of Environmental Quality), Michigan, Mississippi Department of Environmental Quality, Missouri, Montana, Nebraska, New Jersey, North Carolina Department of Environmental Quality, North Dakota, Ohio, Oklahoma (and the Oklahoma Department of Environmental Quality), South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming.

Many of these states, however, are simultaneously considering compliance options. This may be a good move, given that 61% of adults polled in the first 26 states to sue EPA (i.e., not including Mississippi) approve of the CPP, including a majority in every state except North Dakota, West Virginia, and Wyoming. And in Colorado, Gov. Hickenlooper has filed a petition to the state’s Supreme Court questioning the legality of AG Cynthia Coffman’s decision to join the lawsuit, saying, “Except in very rare circumstances, generally the governor is supposed to make that decision in concert with the attorney general… but the governor should have that final say.”

Meanwhile, Attorneys General in 18 states plus several cities are standing by to support EPA (sub required). Led by New York, the states filing to intervene on behalf of EPA also include California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Virginia and Washington. These states were also joined by the District of Columbia; Boulder, Colorado; Chicago; New York City; Philadelphia; South Miami and Broward County, Florida. Iowa AG Tom Miller called the rule “...necessary and practical and doable.”

Illinois Gov. Bruce Rauner has been cautious in his public reaction to the final rule. Rauner spokeswoman Catherine Kelly said that the Illinois Environmental Protection Agency (IEPA) “is still reviewing the rule and determining potential compliance pathways.” The Governor is undoubtedly focused on the state’s ongoing budget impasse, which has impeded efforts to pass energy reform legislation this year. Two competing proposals, the Clean Jobs Bill and a proposal from Exelon designed to bail out its struggling nuclear fleet, could impact the state’s CPP compliance strategy. AEE state partner Clean Energy Trust (CET) recently conducted a survey finding that 67% of Illinois voters support the Clean Jobs Bill and nearly an identical number support  the CPP. Despite this widespread support for the CPP in the state — and a voting record supporting emission reduction legislation — Sen. Mark Kirk has expressed support (sub required) for the CRA resolutions in Congress aimed at overturning the CPP.  "I don't think he's necessarily aligned with the state on this," said Amy Francetic, CEO of CET, adding that the CPP is both popular and profitable in Illinois. 

Covered by Politico’s Morning Energy, a new tool, developed by 5 Lakes Energy and AEE Institute, will allow regulators and other policymakers, as well as members of the public, to find least-cost compliance options for the state of Pennsylvania. The State Tool for Electricity Emissions Reduction (STEER) is an open-source, publicly available Excel tool that mimics modeling used by utilities. AEE Institute published an associated white paper presenting several scenarios and concluding that the state can comply by 2030 without increases in electricity costs over business-as-usual predictions. Energy efficiency features prominently in runs of the STEER model, a conclusion supported by a recent announcement from PECO that its Smart Ideas efficiency program has saved customers $463 million since its inception in 2009. The program is part of the utility’s compliance with the state’s energy efficiency resource standard, Act 129. STEER is available for free download.

Listening sessions in Virginia, where AEE’s Senior VP Malcolm Woolf sits on the state’s technical working group as a representative of the advanced energy industry, have already concluded. Last month, Gov. Terry McAuliffe set the tone for the working groups saying, “We’re not only going to be able to meet those guidelines, I think we’re going to be able to exceed them here in the commonwealth.” An op-ed by State Sen. John Edwards criticizing McAuliffe’s decision to work on a compliance plan was published in the Roanoke Times. AEE senior director for state policy, J.R. Tolbert wrote in response, “the Clean Power Plan is an opportunity for Virginia to develop a compliance plan that boosts the economy.” Tolbert noted that a recent study by AEE Institute showed that the commonwealth could create 5,700 jobs through various compliance strategies.

Check in tomorrow for Part 2 of the series! Subscribe to AEE Weekly by clicking below and never miss another post.

Subscribe to AEE Weekly

Topics: State Policy, EPA GHG Regs