Republicans seek to stall action on emission curbs

By Philip Brasher

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WASHINGTON, June 14, 2016 - There's little that Republicans can do legislatively this year to kill the Obama administration's regulations on carbon emissions from electric power plants, so GOP lawmakers are trying to do the next best thing: Delay the emission curbs as long as possible.

The Supreme Court earlier this year granted a stay of the Environmental Protection Agency's Clean Power Plan while a lower court considers a legal challenge to the rule. So now, opponents of the rule argue that the stay should force the EPA and the states to stop work on the rule and that all deadlines for state compliance should be extended, or “tolled,” for at least as long as the stay is in effect.

So far 29 states have stopped work on their state plans, and seven more have slowed up, but the EPA has refused to say that the deadlines would be extended if the administration wins the case.

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The administration also is continuing work on related issues, including a Clean Energy Incentive Program, which would offer states early-action emission credits for energy efficiency measures in low-income areas, and investments in wind and solar power. EPA sent the CEIP plan to the Office of Management and Budget for review in April. EPA also has said it plans to finalize model rules for trading emission credits this summer.

Republicans believe that by downplaying the stay, EPA is trying to scare states into continuing work on compliance plans and to convince other countries that the United States is moving forward with its commitments to reduce carbon emissions under the Paris Climate Agreement.

Senate Environment and Public Works Chairman Jim Inhofe said at a recent hearing that the stay shows that the Supreme Court has “serious concerns over the legality of the rule” and that no state “should fear any penalty” for halting work on implementation plans. In a letter to EPA, the Oklahoma Republican said the agency is improperly trying to force states to carry out a rule that is “very likely” to be overturned.

The variation in state responses to the stay, and the possibility that deadlines could change, is creating uncertainty for some utilities, including rural electric cooperatives. Michael McInnes, CEO of the Tri-State Generation and Transmission Association, a Colorado-based cooperative that operates in five states, told the Environment and Public Works Committee that two of the states continue working on their state implementation plans.

McInnes, testifying on behalf of the National Rural Electric Cooperative Association, said it was a waste of time and money for states to continue developing plans when the court challenge could result in changes to the rule. “Any plan developed today will likely have to be redone,” he said.

EPA's defenders say the Supreme Court's stay doesn't have the same impact on the rule and the implementation deadlines as an injunction, which they say would have clearly stopped work on implementation. “In arguing that EPA must put its pencil down, opponents confuse the definition between a stay and an injunction,” said Richard Revesz, director of the Institute for Policy Integrity at New York University law school.

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Katie Dykes, a top official in Connecticut's Department of Energy and Environmental Protection, also said her state will benefit from the CEIP and the trading rules. EPA's coming actions will tell states what types of emission plans “will be approvable should the Clean Power Plan be upheld, she said.

But Allison Wood, a lawyer with Hunton &Williams, said that there is ample legal precedent for delaying the deadlines and that there is a “fair prospect” that the plan will be struck down. “When you look at any instance of where an environmental rule was stayed, the timelines have always been tolled,” she said.

By refusing to stop work on the CEIP and model rules, states are being put on the spot, she said. They can either spend time working on implementation plans that may ultimately be scrapped, or they can stop work on their plans and they won't have any say in the design or implementation of the CEIP, she said.

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