Following the Supreme Court’s February 9 decision to stay the Clean Power Plan, a new line has been drawn between states that nonetheless plan to move forward with developing a compliance strategy and those that have halted any such efforts that might have been underway. The Supreme Court’s short order granting the stay provides no certainty about what the new deadlines for the CPP will be, should it ultimately be upheld on judicial review. And the death of Justice Scalia, who voted in favor of the stay, raises additional speculation about the CPP’s ultimate fate.
EPA has stated that it “firmly believes the Clean Power Plan will be upheld when the merits are considered because the rule rests on strong scientific and legal foundations,” and has committed to “continue to provide tools and support” for those states that pursue power plant CO2-reduction efforts. The White House also issued a statement on the stay.
For those interested in continuing to think about CPP compliance, the National Association of Regulatory Utility Commissioners (NARUC) recently released a paper for states (and stakeholders) that may be useful, Constructing State Plans for the Clean Power Plan: The First Questions to Ask. This report goes back to basics, addressing the questions: when does the state have to take action, who should be responsible, and what questions will help differentiate between implementation choices. While the section on timing is affected by the stay, the other sections may prove useful as many states and their stakeholders continue to plan for eventual CPP compliance. In particular, the report notes that although state air regulators are the ones responsible for authoring and submitting the plan, coordination with other state regulators and decision-makers will be important. Since all plans would be required to consider reliability, the role of state utility regulators would be critical. State utility regulators would also play key roles in decisions on renewable resources and redispatch, if these building blocks are to be used. The need to include a variety of stakeholders and state regulators is an important concept for states that intend to continue plan development, as well as stakeholders who may want to provide input in their areas of expertise that extend beyond air pollution.