Clean Air Update – Stay of the
Clean Power Plan
On February 9, 2016, the United States Supreme Court granted a stay of the Clean Power Plan. The stay holds the Clean Power Plan in abeyance during the petition for review pending before the United States Court of Appeals for the District of Columbia Circuit and postpones the Clean Power Plan's September 6, 2016, deadline for each state to submit an initial state implementation plan ("SIP").
Following EPA's August 3, 2015 issuance of the Clean Power Plan, a number of states, environmental groups, and industry groups filed petitions for review in the D.C. Circuit. The D.C. Circuit denied a request for a stay of the Clean Power Plan, and a number of states then requested a stay from the United States Supreme Court. In a 5-4 decision, the Supreme Court granted the stay.
Under the Clean Power Plan, EPA expects that carbon dioxide emissions will be thirty-two percent (32%) lower in 2030 than they were in 2005. To achieve this reduction, each state must achieve rate reductions set by EPA by 2030. Each state must also achieve interim goals between 2022 and 2029.
Each state must choose between two types of plans to achieve its goal. The first is the emission standards plan, which will establish source-specific requirements for all power plants within the state. The second is the state measures plan, which may include renewable energy and energy efficiency programs as well as source-specific requirements in order to meet the mass-based goal. States have flexibility in determining how to meet the goals and can choose among measures including increasing coal plant efficiency, increasing generation through natural gas, renewables, or nuclear, or implementing and expanding energy efficiency programs.
The Clean Power Plan provides that each state must submit an initial SIP by September 6, 2016. The Plan also provides that EPA may grant extensions of up to two years, and, through the extensions, the Plan will allow some states to take until September 6, 2018 to submit final plans.
The stay will postpone the September 6, 2016 deadline for states to submit initial SIPs. The stay will remain in place during review by the D.C. Circuit, which has set oral argument for June 2, 2016. Any decision by the D.C. Circuit is likely to be appealed to the United States Supreme Court.
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Wendy Wilkie Parker
The articles published in this newsletter are intended only to provide general information on the subjects covered. The contents should not be construed as legal advice or a legal opinion. Readers should consult with legal counsel to obtain specific legal advice based on particular situations.