CEO’s Report – Stay on Clean Power Plan denied, opposition continues

February 1, 2016

On January 21, the U.S. Court of Appeals for the District of Columbia Circuit denied motions filed by states and industry, including the American Public Power Association, that sought to put implementation of the Environmental Protection Agency’s final Section 111(d) rule, better known as the Clean Power Plan, on hold while the court hears legal challenges to it. The rule aims to reduce carbon dioxide emissions from existing power plants.

While a stay is traditionally difficult to obtain, particularly on environmental rulings, the court did put the case on an expedited timeline, with oral arguments scheduled for June 2. In a brief opinion, the court said the petitioners had not “satisfied the stringent requirements for a stay pending court review.” The decision means states must comply with the rule’s September 6, 2016 deadline to submit initial state plans. States can file for extensions to that date.

Five days later, 25 states, led by the attorneys general of Texas and West Virginia, asked the U.S. Supreme Court to stay the rule. West Virginia Attorney General Patrick Morrisey stated that states will “suffer irreparable harms as job creators and state agencies spend untold resources to comply with a rule that is likely to be struck down as illegal.”

“An immediate stay from this Court is necessary to prevent the irreversible changes and harms that will continue to occur during the D.C. Circuit proceedings, which could stretch well into 2017,” the states told the high court.

APPA also filed comments with the EPA saying it should make a number of modifications to its proposed Federal Plan Requirements and Model Trading Rules under Section 111(d).

APPA’s recommendations “will substantially improve the Proposed Rule by providing states and affected sources with the necessary flexibility to implement the requirements of the Section 111(d) Rule in keeping with the utility industry’s responsibility to provide its consumers with safe, reliable, and affordably electricity service,” the public power association said.

APPA also explained that it continues to believe that the EPA has gone beyond its legal authority in this proceeding, noting that the public power group has joined many others in seeking judicial review of the Clean Power Plan and a stay of the rule.

The bulk of the association’s comments focus on recommendations to improve the workability and affordability of any federal plan imposed on states and the trading programs necessary for compliance under either a state or federal program, APPA said.

Heartland continues to monitor all activity surrounding the Clean Power Plan and will keep customers apprised of the latest developments. Heartland is not unique in our circumstance of having both load and generation in multiple states. Because each state has to create their own implementation plan, the effects of the plan are still unknown. However, Heartland supports APPA’s position that if implemented fully, the effect on consumers will be harsh. We have discussed our concerns with lawmakers and will continue to make every reasonable effort to do our part to block implementation of the plan.