Clean Power Plan final rule published, legal challenges begin

November 3, 2015

The Environmental Protection Agency‘s (EPA) final Clean Power Plan rule was published in the Federal Register October 23, opening a 60-day window for states, utilities and others opposed to the rule to file lawsuits with the U.S. Court of Appeals for the D.C. Circuit. It also opened a 90-day public comment period.

On the same day the rule was published, a group of more than 20 states asked a federal court to strike down the EPA’s final Clean Power Plan rule, which aims to reduce carbon dioxide emissions from existing power plants. The states argue the rule is “illegal and will have devastating impacts upon the states and their citizens.” South Dakota, Nebraska, Kansas and Wyoming were among the states challenging the rule.

U.S. Senator Mike Rounds
U.S. Senator Mike Rounds

U.S. Senator Mike Rounds (R-S.D.), a member of the Senate Environment and Public Works Committee, recently cosponsored a resolution of disapproval under the Congressional Review Act to stop the EPA from moving forward with the Clean Power Plan. Rounds stated that the end result of the plan “will be sky-high electric rates for South Dakota families, all with very little benefit to the environment.”

Under the Congressional Review Act, Congress can overturn actions by a federal agency, such as the EPA, after a rule is formally published and submitted to Congress. If the resolution is enacted into law, it would nullify the Clean Power Plan, including any portions of the regulations that have already gone into effect.

The American Public Power Association (APPA) and the Utility Air Regulatory Group (UARG) have filed a petition with the U.S. Court of Appeals for the D.C. Circuit asking the court to review the final rule. Separately, APPA, UARG and several other parties asked the U.S. Court of Appeals for the District of Columbia Circuit to stay the final rule.

In the rule, the EPA asserts the Clean Air Act gives it “unprecedented authority to require states to restructure the nation’s energy industry by reducing the electricity generated by certain types of facilities (primarily coal-fired power plants) and by shifting that generation to EPA-favored facilities (e.g. wind and solar facilities) that emit less CO2,” the motion for stay said. “This shift will substantially increase costs to the public and jeopardize the reliability of the nation’s electricity system,” APPA, UARG and the other parties argued.

FERC Commissioner Tony Clark
FERC Commissioner Tony Clark

As utilities take steps to comply with the Clean Power Plan, “keeping the lights on at an affordable rate could be a real challenge,” Federal Energy Regulatory Commission member Tony Clark recently told a Washington, D.C., energy conference. “The biggest concern I have tends to be around affordability and reliability. Of those two concerns, keeping electricity rates affordable may be the most problematic.”

Clark explained that new transmission lines need to be in place in order to import renewable energy resources such as wind power from distant wind farms; and natural gas pipelines must be in place to deliver gas to the increasing number of power plants that rely on that fuel. In places such as California and New England, where the transition toward greater use of both renewables and natural gas has occurred–but where the infrastructure is not yet in place to fully support this transition, electricity rates “are two to two-and-a-half times what they are elsewhere,” Clark said.