U.S. EPA is publishing the final Clean Power Plan to slash carbon emissions from power plants in the Federal Register today, a much-anticipated milestone because it clears the way for objecting states to file lawsuits aimed at killing the regulation.

Also published in the Federal Register today are the final rule regulating carbon dioxide for new, modified and reconstructed power plants and the proposed federal implementation plan, which would be imposed on states that don’t submit a compliance plan to EPA.

The proposed federal implementation plan will be the subject of four public hearings in November, EPA acting air chief Janet McCabe said. Its publication triggers a 90-day comment period that will end Jan. 21.

With the regulation, EPA aims to curb U.S. carbon dioxide emissions from the power sector by 32 percent by 2030.

McCabe told reporters on a conference call yesterday that “there is no substantive change between the pre-publication version of these rules posted online [in August] and the same rules that will be posted tomorrow.”

Since the rule was first proposed last year, roughly half of U.S. states have indicated they may sue EPA to fight the regulation once the rule is formally published. Many states have already attempted to challenge the rule, including an effort led by West Virginia in August seeking an emergency stay, but their efforts were rebuffed by the courts.

EPA and its supporters, however, have repeatedly insisted that the final rule will withstand legal challenges.

EPA’s opponents claim the rule exceeds the agency’s authority over the power sector and is therefore legally vulnerable.

“My own view is that the proposed rule was so far beyond anything that was remotely reasonable that EPA’s attempts in the final rule to crawl back to reasonableness don’t even get close,” Peter Glaser, a partner at Troutman Sanders LLP who frequently represents energy interests, said at a panel discussion on the rule’s legal standing this week.

“The power plan is based on a sound legal and technical foundation,” McCabe said. “We feel strongly that given our authorities and legal precedents under the Clean Air Act that our application of [Section] 111(d) here conforms with those authorities and that legal precedent.”

The first legal actions could occur today. Lawsuits must be filed at the U.S. Court of Appeals for the District of Columbia Circuit within 60 days of Federal Register publication.

EPA offers more on Clean Energy Incentive Program
For states planning on complying with the rule, EPA this week offered more details on a carrot it is offering to entice early efforts to shrink carbon footprints before the rule takes effect in 2022.

On Wednesday, EPA released a “next steps” document on the proposed Clean Energy Incentive Program, or CEIP, intended to encourage states to build wind and solar energy generation and install energy efficiency measures in low-income communities between 2020 and 2022, before the rule takes effect. EPA will reward participating states with early action allowances or emission rate credits, which can be used against the emissions reductions that states must make between 2022 and 2030.

The new document announces a series of meetings on the program with interested parties, including states, tribes, local governments and industry. This includes two in-person training sessions between now and the end of November for tribes and communities and a meeting of the Clean Air Act Advisory Committee on Nov. 18.

The CEIP is optional, and a discrete quantity of allowances or credits—300 million short tons of CO2 emissions—will be offered, so EPA is asking states for a nonbinding indication that they want to participate in the program when they submit initial plans in September 2016, McCabe said. The CEIP is one part of the final Clean Power Plan that states have the most questions about, she added.

The document also outlines what aspects of the program the agency wants to hear more about from stakeholders. EPA is asking about when the agency should award allowances or emission reduction credits to states and how a “low-income community” should be defined under the energy efficiency part of the program.

Some clean energy advocates have faulted the CEIP for not allowing all energy efficiency programs to qualify for early-action credits or allowances (Greenwire, Aug. 17). Among them is Malcolm Woolf, senior vice president for policy and government affairs at Advanced Energy Economy.

Woolf said his group will be advocating for a broad definition of “low-income community” to open up more opportunities for the energy efficiency sector under CEIP. For example, EPA could define low-income communities by census tract, meaning buildings not necessarily occupied by low-income residents could qualify.

Kelly Speakes-Backman, a senior vice president at the Alliance to Save Energy who voiced similar concerns in the past, agreed with this approach, noting that businesses and hospitals in well-defined low-income areas could potentially qualify under the program.

“I think it is a great opportunity for us to get as much efficiency in as possible,” Speakes-Backman said.

Woolf also raised concerns about the timing of the CEIP program, something EPA did not ask for input about in the document released this week. Woolf reported that companies are considering holding off on carbon-cutting projects until the CEIP program starts.

“Having a CEIP program that lets some states count projects in 2020 is good, but that’s still more than four years away.”

Senate leader plans to challenge rule
Senate Majority Leader Mitch McConnell next week is expected to unveil two Congressional Review Act challenges to the EPA rules, setting up votes that are calculated to embarrass the Obama administration just ahead of the Paris climate talks.

The Kentucky Republican will release the resolutions of disapproval scuttling the Clean Power Plan and a rule for new power plants together with Sen. Shelley Moore Capito (R-W.Va.), who earlier this year sponsored legislation that would allow states to opt out of the EPA rule.

The Capito bill would also kill the new power plant rule, which effectively requires new coal plants to use carbon capture and storage technology to cut emissions. It cleared the Environment and Public Works Committee last spring but seems unlikely to garner the 60 votes needed to clear the Senate.

Next week’s McConnell-Capito effort would not have that procedural problem. It employs a rarely used administrative law that allows a resolution to clear the Senate with a simple majority of the vote. This approach would also take less floor time than a bill.

But while it may pass both chambers of Congress, a CRA resolution is still subject to presidential veto.

Reporter Jean Chemnick contributed.

Reprinted from Climatewire with permission from Environment & Energy Publishing, LLC. www.eenews.net, 202-628-6500