A Twofold Approach to Federal Emission Standards

Greenhouse gas emissions have been a hot topic for states since the U.S. Environmental Protection Agency (EPA) released its controversial Clean Power Plan in June 2014. The plan, which aims to reduce carbon pollution from power plants by 30 percent by 2030, has been met with a variety of responses at the state level to either conform with or resist these standards. Under the rules, each state would be required to provide the EPA with its own plan for cutting emissions from power plants within its borders by June 2016. The rules are expected to be finalized and promulgated by the EPA by mid-summer.

The rules would also require each state to reduce its emissions based on a formula that divides the states total CO2 emissions from power plants in pounds by the total amount of megawatt hours the state’s plants generate in power. As such, these reductions can vary from state to state, with Vermont and the District of Columbia not required to reduce emissions at all; neither is home to an active power plant. Washington’s power generators would have to reduce their carbon emissions by nearly 72 percent, the largest reduction needed in the country. Arizona, where some of the most vehement opposition to the plan has originated, would have to reduce emissions by nearly 52 percent.

Opposition to these rules has been fierce at both the state and national level. Earlier this month, the pressure opposing them was markedly increased by U.S. Senate Majority Leader Mitch McConnell, R-Kentucky. In an op-ed to the Lexington Herald-Leader, Senator McConnell took the unprecedented step of urging states and state leaders to outright ignore the EPA rules, should they be finalized and take effect, calling them unfair and “probably illegal.”

Despite the fierce and vocal opposition to the plans – particularly in red states and those with economies heavily dependent on the energy sector – numerous states are opting to take a twofold approach to the pending rules, by passing a resolution stating opposition to the EPA action while also creating a plan to come into compliance with the rules should they take effect.

Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Indiana, Kansas, Mississippi, Missouri, Nebraska, Oklahoma, Pennsylvania, West Virginia and Wyoming have all passed resolutions urging the EPA to respect the primacy of the state’s authority to regulate carbon dioxide performance standards or otherwise going on-the-record with their opposition to the plans, while resolutions are pending in several others.

In order to stay in compliance with the potential rules, Arkansas, Kansas, Kentucky, Louisiana, Missouri, Pennsylvania, Virginia, West Virginia and Wyoming have all passed bills that would authorize the creation of a state plan to cut emissions pursuant to the EPA’s proposed rules. Additionally, bills of this nature are pending in Alaska, Arizona, Colorado, Florida, Illinois, Indiana, Minnesota, Mississippi, Montana, Nebraska, Nevada, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Texas and Washington.

Looking forward through the 2016 legislative season, it is likely that the states which have not done so this will be in a rush to adopt legislation with the new emissions standards in mind, with the June 2016 deadline for a blueprint fast approaching. With only nine states having adopted bills to date, look for this to be a major issue next year.