The Clean Power Plan: Issues to Watch

References (298)

1. U.S. Environmental Protection Agency, Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430 (Jan. 8, 2014).
2. U.S. Environmental Protection Agency, Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34830 (June 18, 2014).
3. EPA Fact Sheet: Overview of the Clean Power Plan: Cutting Carbon Pollution from Power Plants, http://www2.epa.gov/sites/production/files/2014-05/documents/20140602fs-overview.pdf.
4. Patrick Ambrosio, Comments Show Split in State Support For EPA Proposed Power Plant Rule. 45 Env. Rept. (BNA) 3499 (12/05/2014).
5. See Ari Natter, State Officials at House Hearing Disagree On Impact of Proposed Power Plant Rule, 45 Environmental Reporter (BNA) 2623 (09/12/2014) (15 Republican governors denounce Clean Power Plan).
6. Andrew Childers, Court Skepticism, State Backlash Pose Trials For EPA's Clean Power Plan, Panelists Say, 46 Env. Rept. (BNA) 346 (02/06/2015).
7. Andrew Childers & Anthony Adragna, McConnell Wants States to 'Hold Back' On Compliance With EPA's Clean Power Plan, 46 Env. Rept. (BNA) 648 (03/06/2015).
8. Id.
9. Id.
10. Andrew Childers, Questions Likely to Remain for States Even After Clean Power Plan Is Finalized, 46 Env. Rept. (BNA) 1079 (04/10/2015) ;
11. Joyce Cutler, EPA Wants States to Develop Own Plans For Power Plant Rule, General Counsel Says, 46 Env. Rept. (BNA) 997 (04/03/2015)
12. Paul Stinson, Governor Vetoes Legislation Opposing EPA Carbon Plan, Citing Executive Order, 46 Env. Rept. (BNA) 1417 (05/08/2015);
13. Paul Stinson, Governor Signs Executive Order Ruling Out Plan for EPA Carbon Rules, 46 Env. Rept. (BNA) 1357 (05/01/2015)
14. Lorraine McCarthy, State's Lawmakers Give Themselves Veto Power Over Clean Power Plan, 45 Env. Rept. (BNA) 3105 (10/24/2014)
15. Andrew Childers & Anthony Adragna, Governors Largely Shrug Off McConnell's Call To Boycott Clean Power Plan Compliance, 46 Env. Rept. (BNA) ( 05/22/2015)
16. State air agencies see 'seamless' movement to greenhouse gas permits as 2011 begins, Electric Utility Week, November 1, 2010, at 3 (seamless);
17. Vincent Valk & Kara Sissell, Officials Say Most States on Schedule for GHG Permitting, Chemical Week, September 20, 2010, at 12.
18. State air agencies see 'seamless' movement to greenhouse gas permits as 2011 begins, Electric Utility Week, November 1, 2010, at 3.
19. State air agencies see 'seamless' movement to greenhouse gas permits as 2011 begins, Electric Utility Week, November 1, 2010, at 3. Thirteen states reported that they lacked authority to administer GHG permitting programs, but seven of those were confident that they could obtain that authority by the deadline. Id.
20. State air agencies see 'seamless' movement to greenhouse gas permits as 2011 begins, Electric Utility Week, November 1, 2010, at 3. 28 Environmental Protection Agency, Determinations Concerning Need for Error Correction, Partial Approval and Partial Disapproval, and Federal Implementation Plan Regarding Texas Prevention of Significant Deterioration Program. 75 Fed. Reg. 82, 430 (December 30, 2010), at 82,433; Housley Carr, Environmental Protection Agency takes over GHG authority in Texas from state agency, Global Power Report, December 23, 2010
21. See, e.g., Waqas Azeem, EPA issues greenhouse gas permit for El Paso Electric peaking plant, SNL Energy Finance Daily, March 27, 2014. 30 Texas v. EPA, 726 F.3d 180 (D.C. Cir. 2013).
22. Withdrawal of Federal Implementation Plan; Texas; Prevention of Significant Deterioration; Greenhouse Gas Tailoring Rule Revisions, 79 FR 9123 (February 18, 2014).
23. Environmental Protection Agency, Fact Sheet: Clean Power Plan & Carbon Pollution Standards Key Dates, undated, available at http://www2.epa.gov/cleanpowerplan/fact-sheet-clean-power-plan-carbon-pollution-standards-key-dates.
24. Andrew Childers, Questions Likely to Remain for States Even After Clean Power Plan Is Finalized, 46 Env. Rept. (BNA) 1079 (04/10/2015).
25. Andrew Childers & Anthony Adragna, McConnell Wants States to 'Hold Back' On Compliance With EPA's Clean Power Plan, 46
26. Env. Rept. (BNA) 648 (03/06/2015) (quoting Prof. Daniel Selmi, Loyola University of Los Angeles School of Law).
27. Jonathan Crawford, Xcel Energy exec says EPA ill-equipped for federal takeover of state climate plans, SNL Generation Markets Week, October 8, 2013.
28. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001).
29. Under the Senate version, EPA's authority to regulate under § 111(d) turns on whether EPA is already regulating a particular pollutant under the national ambient air quality standard program or under hazardous air pollutant standards promulgated under § 112. Under the House version, EPA's authority to regulate under § 111(d) can be construed to turn on whether EPA has regulated a category of sources under either of those programs.
30. See Citizens to Save Spencer County v. EPA, 600 F.2d 844. 872 (D.C. Cir. 1979) (stating, in reviewing EPA's effort to reconcile two conflicting statutory provisions, that "where the agency in a reasonable and responsible manner exercises the discretion that by inadvertence or legislative impasse it has been afforded, and properly takes into account the various concerns and determinations that lay behind the legislative enactment, it is the duty of the reviewing court to sustain the agency's result"). See also Alaska Wilderness League v. Jewell, 2015 WL 3620115, at *10 (9th Cir, June 12, 2015) (concluding that courts owe deference under Chevron step two to a reasonable agency interpretation when "[c]onfronted with a self-contradictory, ambiguous provision in a complex statutory scheme").
31. See, e.g., Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264 (1981) (upholding the cooperative federalism provisions of the Surface Mining Control and Reclamation Act and endorsing a broad array of other cooperative federalism- based statutes).
32. Mississippi Comm'n on Envtl. Quality v. EPA, 2015 WL 3461262 (D.C. Cir. 2015) (citing Hodel; Texas v. EPA, 726 F.3d 180, 196 -97 (D.C. Cir. 2013)) (noting that the Supreme Court "has 'repeatedly affirm[ed] the constitutionality of federal statutes that allow States to administer federal programs but provide for direct federal administration if a State chooses not to administer it.'"). 41 505 U.S. 144 (1992).
33. FERC v. Mississippi, 456 U.S. 742 (1982).
34. See, e.g., Mississippi Comm'n, 2015 WL 3461262, at *31 (citing Hodel) ("Here, too, the 'full regulatory burden will be borne by the Federal Government' if a State chooses not to submit an implementation plan. Under these circumstances, 'there can be no suggestion that the Act commandeers ... the States.' ").
35. 42 U.S.C. § 7416.
36. See, e.g., Train v. NRDC, Inc., 421 U.S. 60, 79 (1975).
37. Mississippi Comm'n, 2015 WL 3461262, at *31-35. 51 42 U.S.C. § 7411(a)(1) (emphasis added).
38. EPA, Legal Memorandum for Proposed Carbon Pollution Emission Guidelines for Existing Electric Utility Generating Units 51- 52 (2014) (citing Oxford Dictionary of English (3rd ed.) (published 2010, online version 2013), http://www.oxfordreference.com.mutex.gmu.edu/view/10.1093/acref/9780199571123.001.0001/acref- 9780199571123, available at http://www2.epa.gov/sites/production/files/2014-06/documents/20140602-legal- memorandum.pdf.
39. H.R. Rep. No. 95-294, 1977 U.S.C.C.A.N. 1077, 1088 (1977) ("The section also makes clear that standards adopted for existing sources under § 111(d) of the act are to be based on available means of emission control (not necessarily technological) and must, unless the State decides to be more stringent, take into account the remaining useful life of the existing sources.").
40. Massachusetts v. EPA, 549 U.S. 497, 532 (2007).
41. Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2339-42 (2014).
42. Michigan v. EPA, 135 S. Ct. 2699, 2708 (2015)
43. The statute defines an "existing source" to mean "any stationary source other than a new source." 42 U.S.C. § 7411(a)(6).
44. Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2448 (2014).
45. See, e.g, In re Murray Energy Corp., No. 14-111 (D.C. Cir. June 9, 2015) (rejecting a CPP challenge because the proposed rule was not final agency action subject to judicial review);
46. West Virginia v. EPA, No. 14-1146 (D.C. Cir. June 9, 2015) (same).
47. In contrast, once states promulgate and EPA approves CPP implementation plans, parties must challenge EPA's actions in the appropriate local circuit of the U.S. Courts of Appeals (i.e., the Ninth Circuit would have jurisdiction to hear challenges to EPA's approval of California's plan, the Tenth Circuit could hear challenges to EPA's approval of Colorado's plan, and the Fifth Circuit could hear challenges to EPA's approval of Texas's plan). 42 U.S.C. § 7607(b).
48. 42 U.S.C. § 7607(d)(9). A party's ability to raise procedural arguments is conditioned on the party showing it met the Clean Air Act's exhaustion requirements and that the procedural errors were so serious and relevant that there is a substantial likelihood that the rule would have been significantly changed if the errors had not been made. 42 U.S.C. § § 7607(d)(7)(B), (d)(8), &
49. Texas Mun. Power Agency v. EPA, 89 F.3d 858, 875 (D.C. Cir. 1996) ("Under [the Clean Air Act], we may only review claims that have been first raised 'with reasonable specificity' before [EPA]…"). In dicta, the D.C. Circuit has asserted that parties do not have to exhaust claims challenging the constitutionality of parts of the Clean Air Act. Motor & Equipment Mfrs. Ass'n, Inc. v. EPA, 627 F.2d 1095, 1115 (D.C. Cir. 1979). Since then, the D.C. Circuit has become increasingly rigid regarding the exhaustion requirement, and it is unclear if the court would maintain that position today.
50. Specifically, a party may be able to raise challenges in court that it did not raise previously if it can show that it was impracticable to raise the issue within the period of time given for public comment or if the grounds for objection arose after the period for public comment closed. 42 U.S.C. § 7607(d)(7)(B).
51. However, under the doctrine of constitutional avoidance, if a statute or regulation has more than one potential meaning, a court will use the meaning that avoids constitutional questions or infirmities. Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 174 (2001); see also William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86
52. Cornell L. Rev. 831 (2001) (critiquing the Court's approach as insufficiently deferential to the executive branch).
53. Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984). Where an agency charged with administering a law has used notice- and-comment rulemaking to interpret the law, courts apply the Chevron doctrine to analyze the agency's interpretation. United States v. Mead Corp., 533 U.S. 218, 230 (2001). If the agency uses a less formal method to interpret the law, such as a guidance document that has not gone through notice-and-comment or does not have the force of law, courts will often apply Skidmore deference instead. Id. at 237. Skidmore directs courts to defer to agency interpretations of ambiguous statutes if the courts find the interpretations persuasive. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
54. Chevron, 467 U.S. at 842-43 ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.").
55. See, e.g., FAA v. Cooper, 132 S. Ct. 1441, 1457-58 (2012) (looking to Black's Law Dictionary and Webster's Dictionary to determine the meaning of statutory language); see also 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 47:07, at 315 (7th ed. 2007).
56. Shays v. FEC, 337 F. Supp.2d 28, 52 (D.D.C. 2004) (canons of statutory construction are used at Chevron step one to determine the specific intent of Congress);
57. AFL-CIO v. FEC, 333 F.3d 168, 183-84 (D.C. Cir. 2003) (canons of construction that assist courts in determining Congress's intent apply at Chevron step one).
58. Singer & Singer, supra note 73, § 47:17, at 364-87;
59. Richard E. Levy & Robert L. Glicksman, Statutory Analysis in the Regulatory State 121 (2014).
60. Singer & Singer, supra note 73, § 47:23, at 406-26; Levy & Glicksman, supra note 75, at 118-19.
61. Massachusetts v. EPA, 549 U.S. 497, 528 (2007).
62. Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661 (2007).
63. United States v. Rodgers, 461 U.S. 677, 706 (1983) ("The word 'may,' when used in a statute, usually implies some degree of discretion.");
64. Levy & Glicksman, supra note 75, at 116-17.
65. Deal v. United States, 508 U.S. 129, 132 (1993) ("[It is a] fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.");
66. Levy & Glicksman, supra note 75, at 129-30 (discussing the "whole act" rule).
67. See, e.g., Smith v. United States, 507 U.S. 197, 201 (1993) (looking to other parts of a statute to determine the meaning of the term "foreign country"); see also Singer & Singer, supra note 73, § 46:05, at 228-31;
68. Levy & Glicksman, supra note 75, at 130- 33.
69. See, e.g., Humphrey's Ex'r v. United States, 295 U.S. 602, 618 (1935) (looking to other statutes to determine the President's removal power);
70. Levy & Glicksman, supra note 75, at 136-39.
71. Daniel T. Shedd & Todd Garvey, Cong. Research Serv., R43201, Chevron Deference: Court Treatment of Agency Interpretations of Ambiguous Statutes 6 (2013) ("[I]t is common practice to consider legislative history during the first step of the Chevron test.");
72. Levy & Glicksman, supra note 75, at 171-75, 79-81. But see United States v. Geiser, 527 F.3d 288, 292 (3d Cir. 2008) ("[L]egislative history should not be considered at [Chevron] step one.").
73. See North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008). Courts at times also vacate and remand agency actions. This has the same practical impact as a vacatur, in that the agency action will not have any operative effect while the agency reconsiders its invalidated rule.
74. Id. at 843 ("[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.").
75. See Mayo Found. for Medical Educ. and Research v. United States, 562 U.S. 44, 52 (2011); see also Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2022, 2034 (2012).
76. Chevron, 467 U.S. at 844 ("[C]onsiderable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer.").
77. Id. at 866 ("The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones.").
78. Matthew C. Stephenson & Adrian Vermeule, Essay, Chevron Has Only One Step, 95 Va. L. Rev. 597 (2009).
79. Kenneth A. Bamberger & Peter L. Strauss, Essay, Chevron's Two Steps, 95 Va. L. Rev. 611 (2009).
80. Empirical reviews of judicial decisions have found very few examples of agency actions that fail at step two. Jason J. Czarnezki, An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation, and the Chevron Doctrine in Environmental Law, 79 U. Colo. L. Rev. 767, 797 (2008);
81. Orin S. Kerr, Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 Yale J. on Reg. 1, 30-31 (1998).
82. 531 U.S. 457, 484-85 (2001).
83. 556 U.S. 208, 222 (2009).
84. See F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009); Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1209 (2015). 97 461 U.S. 402, 423 (1983) (interpreting 16 U.S.C. § 824a-3(b)).
85. Id. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
86. Id. at 43.
87. Nat'l Ass'n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1229 (D.C. Cir. 2007).
88. See, e.g., Ass'n of Irritated Residents v. U.S. E.P.A., 686 F.3d 668, 677 (9th Cir. 2012) (EPA's failure to act was arbitrary and capricious because the agency does not have "unlimited discretion to ignore evidence indicating an existing SIP might be substantially inadequate").
89. See, e.g., Texas v. EPA, 690 F.3d 670 (5th Cir. 2012) (EPA's disapproval of Texas's SIP was arbitrary and capricious in part because EPA's regulations required less specificity than EPA demanded in practice).
90. See, e.g., Am. Farm Bureau Fed'n v. EPA, 559 F.3d 512, 522 (D.C. Cir. 2009) (EPA acted arbitrarily because it failed to adequately explain its reason for changing its position on how to set the National Ambient Air Quality Standards for particulate matter).
91. See EPA v. EME Homer City Gen., LP, 134 S. Ct. 1584 (2014).
92. See Ne. Maryland Waste Disposal Auth. v. EPA, 358 F.3d 936, 951-52 (D.C. Cir. 2004) ("A rule is deemed a logical outgrowth if interested parties 'should have anticipated' that the change was possible, and thus reasonably should have filed their comments on the subject during the notice-and-comment period.").
93. Emily Hammond & David B. Spence, The Regulatory Contract in the Marketplace, -Vand. L. Rev. -(forthcoming), available at http://ssrn.com/abstract=2584619.
94. E.g., Notice of Upcoming Joint Rulemaking to Establish Vehicle GHG Emissions and CAFE Standards, 74 Fed. Reg. 24,007 (May 22, 2009) (joint rulemaking by EPA and National Highway Transportation Safety Administration); cf. Del. Dep't Natural Resources v. EPA, 785 F.3d 1 (D.C. Cir. 2015) (holding arbitrary and capricious EPA's failure to consult with FERC regarding back- up generator rule).
95. Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131, 1146-49 (2012).
96. Freeman & Rossi, supra note 112; cf. Emily Hammond, Presidential Control, Expertise, and the Deference Dilemma, 61 Duke L.J. 1763, 1785-90 (2012) (documenting problematic dispute between DOE and NRC and collecting further examples).
97. Del. Dep't of Natural Resources, 785 F.3d 1.
98. For an overview of the agencies' activities, see Bud Earley, FERC Outlines Its Role in Implementing EPA's Clean Power Plan, Inside Energy & Env't., May 20, 2015, at http://www.insideenergyandenvironment.com/2015/05/ferc-outlines-its-role-in- implementing-epas-clean-power-plan/.
99. The term "transmission" generally refers to the movement of electric current over longer distances at higher voltages (so- called bulk power transfers), while "distribution" refers to the delivering electricity at lower voltages from high-voltage transmission lines to end-users. See generally Jack Casazza & Frank Delea, Understanding Electric Power Systems (2010).
100. A distinct issue, addressed in a different section below, is that of multi-state collaboration in meeting CPP requirements. Cf. NARUC, 124
101. See Emily Holden, Will tension between lawmakers and regulators hamstring the Clean Power Plan?, Energywire, June 29, 2015, at http://www.eenews.net/stories/1060021010 ("[a]ir and electric regulators are interacting more and getting along better than ever").
102. Id.
103. NASEO, State 111(d) Resource Hub, at http://111d.naseo.org/ (last visited July 21, 2015).
104. See Regulatory Assistance Project, Preparing for 111(d): 10 Steps Regulators Can Take Now (2014) (emphasizing need for "regular and detailed dialogues" between state agencies).
105. This issue is distinct from that of dormant Commerce Clause limits on state initiatives like renewable portfolio standards. See Steven Ferrey, Carbon Outlasts the Law: States Walk the Constitutional Line, 41 B.C. Envtl. Affairs L. Rev. 309 (2014) (considering both dormant Commerce Clause and Supremacy Clause challenges to state carbon initiatives).
106. See, e.g., ONEOK, Inc. v. Learjet, 135 S. Ct. 1591 (2015) (holding Natural Gas Act, which is read in pari materia with Federal Power Act, did not preempt statelaw antitrust claims against natural gas traders operating on both the wholesale and retail markets);
107. see also Elec. Power Supply Ass'n v. FERC, 753 F.3d 216 (D.C. Cir. 2014), pet'n for cert. granted May 4, 2015 (holding Order 745 invalid as beyond FERC's jurisdiction and concluding pricing rationale was arbitrary and capricious);
108. Emily Hammond, Energy Law's Jurisdictional Boundaries: A Call for Course Correction, Geo. Wash. L. Rev. Docket (Apr. 28, 2015), http://www.gwlr.org/oneok-v-learjet/ (discussing implications of recent Supreme Court activity).
109. PPL Energyplus, LLC v. Solomon, 766 F.3d 241 (3d Cir. 2014), pet'n for cert. filed Dec. 10, 2014 (holding New Jersey effort to compensate new generation for capacity market disparities was preempted by Federal Power Act);
110. PPL Energyplus, LLC v. Nazarian, 753 F.3d 467 (4 th Cir. 2014), pet'n for cert. filed Nov. 26, 2014 (similar).
111. Nazarian, 745 F.3d at 473; see also Solomon, 766 F.3d at 748 ("New Jersey divorced the entities that generate electricity from those that supply it.").
112. See Hammond & Spence, supra note 110 (documenting nuclear power's comparative benefits, especially compared to natural gas (reliability) and coal (environmental externalities)).
113. Id.
114. See id. (noting policy options considered by a variety of states for maintaining nuclear fleets).
115. See generally Citi, Rising Sun: Implications for U.S. Utilities, 22, 26 (2013);
116. Peter Kind, Energy Infrastructure Advocates, Disruptive Challenges: Financial Implications and Strategic Responses to a Changing Retail Electric Business 1 (2013);
117. David B. Raskin, The Regulatory Challenge of Distributed Generation, 4 Harv. Bus. L. Rev. Online 33-51 (2013). See also Joseph P. Tomain, Traditionally-Structured Electric Utilities in a Distributed Generation World, 38 Nova L. Rev. 473 (2014).
118. See e.g. North American Reliability Corporation, Potential Reliability Impacts of EPA's Proposed Clean Power Plan Phase I (April 2015).
119. Steven Nadel & Garrett Herndon, The Future of the Utility Industry and the Role of Energy Efficiency (June 2014).
120. Elisabeth Graffy & Steven Kihm, Does Disruptive Competition Mean a Death Spiral for Electric Utilities?, 35 Energy L. J. 1 (2014).
121. Susan Tierney et als., Electric System Reliability and EPA's Clean Power Plan: Tools and Practices (2015).
122. Joseph P. Tomain, Traditionally-Structured Electric Utilities in a Distributed Generation World, 38 Nova L. Rev. 473 (2014).
123. Joseph P. Tomain, Ending Dirty Energy Policy: Prelude to Climate Change chs. 3 & 4 (2011).
124. See e.g. Karl McDermott, Edison Elec. Inst., Cost of Service Regulation in the Investor-Owned Electric Utility Industry: A History of Adaptation 17 (2012);
125. Peter Kind, Energy Infrastructure Advocates, Disruptive Challenges: Financial Implications and Strategic Responses to a Changing Retail Electric Business 1 (2013).
126. Joseph P. Tomain, Nuclear Power Transformation (1987).
127. State of New York Public Service Commission, Case 14-M-0101 -Proceeding on Motion of the Commission in Regard to Reforming the Energy Vision: Order Adopting Regulatory Policy Framework and Implementation Plan (February 26, 2015).
128. Andrew O. Caplan, REV'ed and Ready: New York Aims to Reform its Energy Vision: For Technology Companies, It's a Dream Come True, 153 Pub. Util. Fort. 16 (May 2015).
129. e21 Initiative, Phase I Report: Charting a Path to a 21 st Century Energy System in Minnesota (December 2014).
130. Hawaii Clean Energy Initiative, available at http://www.hawaiicleanenergyinitiative.org/.
131. California's Clean Energy Future: Implementation Plan (September 2010).
132. Carl Surran, Southern Co. in Agreement with Tesla to Test Battery Storage, CEO Says (May 27, 2015);
133. Crain's Cleveland Business, Duke Energy to Build Energy-Storage System in Southern Ohio (May 26, 2015);
134. Davide Savenije, Are Utilities Missing the Rooftop Solar Opportunity? (January 6, 2014);
135. John Jung, Energy Storage: The Utility's Best Friend, 153 Pub. Util. Fort. 38 (March 2015);
136. Paul Nillsen, Michael Pollitt & Eva Wittler, New Utility Business Model: A Global View in Fereidoon P. Sioshansi (ed.), Distributed Generation and Its Implications for the Utility Industry ch 2 (2014).
137. Black & Veatch, 2014 Strategic Directions: U.S. Electric Industry (2014).
138. Regulatory Assistance Project, Revenue Regulation and Decoupling: A Guide to Theory and Application (June 2011).
139. NY State Department of Public Service Staff Report and Proposal, Reforming the Energy Vision 46-65 (April 24, 2014); e21 Initiative, Phase I Report: Charting a Path to a 21 st Century Energy System in Minnesota 8-19 (December 2014); Sonia Aggarwal & Eddie Burgess, New Regulatory Models (March 2014).
140. Jonas J. Monast & Sarah K. Adair, Completing the Energy Innovation Cycle: The View from the Public Utility Commission, 65
141. Hastings L. J. 1345 (June 2014).
142. Carl Linvill, John Shenot & Jim Lazar, Designing Distributed Generation Tariffs Well: Fair Compensation in a Time of Transition (November 2013);
143. Ceres, Inc. & Clean Edge, Benchmarking Utility Clean Energy Deployment: 2014: Ranking 32 of the Largest U.S. Investor-On Electric Utilities on Renewable Energy & Energy Efficiency 6 (July 2014).
144. Note that the United State Supreme Court recently remanded mercury rules to the Environmental Protection Agency in Michigan v. Environmental Protection Agency, 576 U.S. ___ (2015).
145. NERC is a non-governmental regulatory authority established to evaluate and improve the reliability of the electric system in North America. Pursuant to the Energy Policy Act of 2005, Congress created an entity known as an electric reliability organization (ERO) to conduct periodic assessments of reliability and the adequacy of the bulk power system in the country. Further, NERC has been designated by FERC as the ERO for North America.
146. North American Electric Reliability Corporation, potential Reliability Impacts of EPA's Proposed Clean Power Plan: Initial Reliability Review (November 2014).
147. U.S. Energy Information Administration, Scheduled 2015 Capacity Additions Mostly Wind and Natural Gas; Retirements Mostly Coal (March 10, 2015).
148. Jurgen Weiss et als., EPA's Clean Power Plan and Reliability: Assessing NERC's Initial Reliability Review v, 14-17 (February 2015) (a Brattle Group report prepared for the Advanced Energy Economy Institute).
149. Alexandra B. Klass, The Electric Grid at a Crossroads: A Regional Approach to Siting Transmission Lines, 48 U.C. Davis L. Rev. ___ (2015).
150. Renewables penetration has been increasing as costs decline. Some regions of the country already exceed penetration levels assumed by EPA without having negatively affected operational reliability.
151. U.S. Energy Information Administration, Annual Energy Outlook 2015 with Projections to 2040 ES-6 (April 2015).
152. EPRI, The Integrated Grid: Realizing the Full Value of Central and Distributed Energy Resources (2014) and The Integrated Grid: A Benefit-Cost Framework (February 2015) available at http://integratedgrid.epri.com/.
153. U.S. Energy Information Administration, Annual Energy Outlook 2015 with Projections to 2040 ES-5 (April 2015).
154. Mark Chedick & Dana Hill, Musk Plots Energy Storage Fix Where Utility Industry Failed, Bloomberg News (April 28, 2015).
155. Jurgen Weiss et al., EPA's Clean Power Plan and Reliability: Assessing NERC's Initial Reliability Review 39-4950 (February 2015) (a Brattle Group report prepared for the Advanced Energy Economy Institute).
156. Gerry Anderson (Chair and CEO of DTE Energy), Written Opening Statement, Federal Energy Regulatory Commission: Technical Conference On Environmental Regulations and Electric Reliability, Wholesale Electricity Markets, and Energy Infrastructure, Docket No. AD15-4-000; see also Supplemental Comments of the Edison Electric Institute , Federal Energy Regulatory Commission: Technical Conference On Environmental Regulations and Electric Reliability, Wholesale Electricity Markets, and Energy Infrastructure, Docket No. AD15-4-000.
157. Jurgen Weiss et al., EPA's Clean Power Plan and Reliability: Assessing NERC's Initial Reliability Review v, 14-50 (February 2015) (a Brattle Group report prepared for the Advanced Energy Economy Institute).
158. Susan Tierney, Eric Svenson & Brian Parsons, Insuring Electric Grid Reliability Under the Clean Power Plan: Addressing Key Themes from the FERC Technical Conferences 3 (April 2015).
159. Id. at 14. The report goes on to note, however, should some safety valve or mechanism be implemented, that it should not delay compliance planning and that it satisfy certain principles including that such a mechanism should be to demonstrated through standard industry tools; be transparent; the equitable among asset owners of state; and, the cost effective. In short, such mechanism should not deter emissions reductions. Id. at 15.
160. See e.g. Jonas Monast et al., Enhancing Compliance Flexibility Under the Clean Power Plan: A Common Elements Approach to Capturing Low-Cost Emissions Reductions (March 2015);
161. Cadmus, Exploring and Evaluating Modular Approaches to Multi-State Compliance with EPA's Clean Power Plant in the West (April 29, 2015); National Association of Clean Air Agencies, Implementing EPA's Clean Power Plan: Menu of Options (May 2015);
162. Franz T. Litz & Jennifer Macedonia, Choosing a Policy Pathway to State 111(d) Plans to Meet State Objectives (April 2015) (a report for the Great Plains Institute and the Bipartisan Policy Center).
163. Susan Tierney, Eric Svenson & Brian Parsons, Insuring Electric Grid Reliability Under the Clean Power Plan: Addressing Key Themes from the FERC Technical Conferences 6 (April 2015).
164. Jurgen Weiss et al., EPA's Clean Power Plan and Reliability: Assessing NERC's Initial Reliability Review v, 14-52-59 (February 2015) (a Brattle Group report prepared for the Advanced Energy Economy Institute).
165. Susan Tierney, Eric Svenson & Brian Parsons, Insuring Electric Grid Reliability Under the Clean Power Plan: Addressing Key Themes from the FERC Technical Conferences 11-12 (April 2015).
166. Brian Parsons & John Jimison, Comments and Written Statement (by a coalition of public interest organizations), Federal Energy Regulatory Commission, Denver Regional Technical Conference on Environmental Regulations and Electric Reliability, Wholesale Electricity Markets, and Energy Infrastructure, Docket No. AD15-4-000 (February 25, 2015) (for the Western Electricity Coordinating Council which promotes system reliability for a region that extends from Canada to Mexico and includes all portions 14 states ); see also Susan Tierney, Paul Hibbard & Craig Aubuchon, Electric System Reliability and EPA's Clean Power Plan: The Case of PJM (March 16, 2015) (PJM is adapting to changes in the electric industry in doing so successfully regarding reliability) (PJM is a regional transmission organization that coordinates wholesale sales of electricity and all parts of 13 Eastern and Miss Western states and the District of Columbia).
167. See e.g. Susan Tierney, Paul Hibbard & Craig Aubuchon, Electric System Reliability and EPA's Clean Power Plan: Tools and Practices (February 2015).
168. Joseph P. Tomain, Ending Dirty Energy policy: Prelude to Climate change chs. 3 & 4 (2011)(discussing the development of clean energy policies);
169. Like Mills, Global Trends in Clean Energy Investment: Rebound in Clean Energy Investment in 2014 Beats Expectations (January 9, 2015) (discussing clean energy investments).
170. Jeremy Richardson, Surprising Facts About the Clean Power Plan: Most States Are Already on Track to Meet 2020 Benchmarks for Reducing Carbon Emissions (June 3, 2015);
171. Jeremy Richardson et als, States of Progress: Existing Commitments to Clean Energy Put Most States on Track to Meet Clean Power Plan's 2020 Benchmarks (June 3, 2015).
172. See DSIRE & NC Clean Energy Technology Center, Database of State Incentives for Renewables and Efficiency available at http://www.dsireusa.org/; Center for Climate and Energy Solutions, Renewable and Alternative Energy Portfolio Standards. 183
173. White House, A Clean Energy Standard for America (March 2, 2012).
174. U.S. Energy Information Administration, Analysis & Projections: Analysis of the Clean Energy Standard Act of 2012 3-4 (May 2, 2012).
175. Energy Future Coalition et al., Three Pillars: A Comprehensive Approach to Setting Clean Energy Standards for the Electricity Sector 5 (April 2009);
176. Berkeley Lab Electricity Markets & Policy Group, The Total Cost of Saving Electricity Utility Customer- Funded Energy Efficiency Programs: Estimates of the National, State, Sector and Program Level (April 2015).
177. John C. Dernbach & Marianne Tyrrell, Federal Energy Efficiency and Conservation Laws in Michael B. Gerrard (ed.), The Law of Clean Energy 25, 34 (2011).
178. White House, Obama Administration Finalizes Historic 54.5 MPG Fuel Efficiency Standards (August 28, 2012).
179. See e.g. Union of Concerned Scientists, Strengthening the EPA's Clean power Plan: Increasing Renewable Energy Use Will Achieve Greater Emissions Reductions (October 2014; David Farnsworth, Navigating EPA's Clean Power Plan for Compliance with Renewable Energy (February 11, 2015);
180. American Council on Renewable Energy, Comments on the Proposed Carbon Pollution Emissions Guidelines for Existing Stationary Sources: Electric Generating Units (December 1, 2014).
181. Jonas Monast & David Hoppock, Designing CO 2 Performance Standards for a Transitioning Electricity Sector: A Multi-Benefits Framework, 44 Envtl L. Rptr. 11068 (December 2014).
182. Alison Cassady, Mitigating Natural Gas Use in the Electricity Sector: Renewable Energy, Energy Efficiency, and the Role of States in Implementing the Clean Power Plan (December 2014).
183. Jeffrey Tomich, DOE Pulls Plug on FutureGen Coal Project, EnergyWire (February 4, 2015).
184. Lincoln L. Davies, Kirsten Uchitel & John Ruple, Understanding Barriers to Commercial-Scale Carbon Capture And Sequester in the United States: An Empirical Assessment, 59 Energy Policy 745, 748 (August 2013);
185. Jan Eide, Rethinking CCS -Strategies for Technology Development in Times of Uncertainty ch. 2 (2013) (PhD thesis).
186. Wendy B. Jacobs, Trends, Challenges and Next Steps in CCS Regulation Slide 6 (May 27-28, 2014).
187. U.S. Congressional Budget Office, Federal Efforts to Reduce the Cost of Capturing and Storing Carbon Dioxide 2 (2012);
188. Wendy B. Jacobs, Carbon Capture and Sequestration in Michael Gerrard & Jody Freeman (eds.), Global Climate Change and U.S. Law ch. 17 (2d ed. April 2014).
189. Arnold W. Reitze, Jr., Carbon Capture and Storage (Sequestration), 43 Envtl. L. Rept. 10414 (May 2013). 197 Union of Concerned Scientists, Policy Context of Geologic Carbon Storage 3-4 (July 7, 2001).
190. Wendy B. Jacobs, Carbon Capture and Sequestration in Michael Gerrard & Jody Freeman (eds.), Global Climate Change and U.S. Law ch. 17 (2d ed. April 2014).
191. Jim Rossi & Emily Hammond, Electric Power Generation Fuels in Michael B. Gerrard & Jody Freeman (eds.), Global Climate Change and U.S. Law (2d ed. 2014). But see Amory B. Lovins, Imran Sheikh & Alex Markevich, Nuclear Power: Climate Fix of Folly? (December 2008).
192. Ellen Reinhardt & Sean Powers, Plant Vogtle Nuclear Power Plant Price Tag Soars, Construction Delayed (December 16, 2014);
193. Ray Henry, 1-Year Delay Possible at Plant Vogtle, Watchdog Says, Augusta Chronicle (December 16, 2014);
194. Rob Pavey, Georgia Power Reports Costs, Challenges of Vogtle Expansion, Augusta Chronicle (August 31, 2012);
195. Kristi E. Swartz, Timeline for U.S.'s Newest Reactor Stretched into 2019, EnergyWire (January 30, 2015);
196. Kristi E. Swartz, Fla. Utility See Nuclear Delays as Generation Needs Increase, Energywire (January 27, 2015).
197. John M. Deutch & Ernest J. Moniz, The Future of Nuclear Power: An MIT Interdisciplinary Study (2003);
198. John M. Deutch et als., Update of the MIT 2003 Future of Nuclear Power (2009). But see Thomas B. Cochran, Critique of "The Future of Nuclear Power: An Interdisciplinary Study" (from NRDC).
199. Energy.Gov, Small Modular Nuclear Reactors..
200. Kurt Kleiner, Nuclear Energy: Assessing Emissions, Nature Reports: Climate Change (September 24, 2008);
201. Benjamin K. Sovacool, Valuing the Greenhouse Gas Emissions from Nuclear Power: A Critical Survey, 36 Energy Policy 2940 (June 2008).
202. Joseph P. Tomain, Shale Gas and Clean Energy Policy, 63 Case Western L. Rev. 1187 (2013).
203. Daniel Yergin, America's New Energy Reality, N.Y. Times Sunday Review 9 (June 10, 2012) available at http://www.nytimes.com/2012/06/10/opinion/sunday/the-new-politics-of-energy.html; Who Will Rule the Oil Market?, N.Y. Times Sunday Review (January 23, 2015) available at http://www.nytimes.com/2015/01/25/opinion/sunday/what- happened-to-the-price-of-oil.html.
204. Energy.gov, Office of Fossil Energy, Why is Shale Gas Important?
205. Richard J. Peirce, Jr., Natural Gas Fracking Addresses All of Our Major Problems, 4 J. Energy & Envtl. L. 22 (Summer 2013).
206. Alan J. Krupnick et al., The Natural Gas Revolution: Critical Questions for a Sustainable Energy Future 1 (March 2014).
207. John D. Podesta & Timothy E. Wirth, Natural Gas: A Bridge Fuel for the 21 st Century (August 10, 2009);
208. Stephen P.A. Brown, Alan J. Krupnick & Margaret A. Wells, Natural Gas: A Bridge to a Low-Carbon Future (December 2009).
209. The White House, Remarks by the President in Sate of the Union Address (January 24, 2012).
210. Stephen P.A. Brown, Steven A. Gabriel & Ruud Egging, Abundant Shale Gas Resources: Some Implications for Energy Policy (April 2012).
211. John Corrigan & Jim Hendrickson, Shale vs. Coal, 150 Pub. Util. Fort. 20 (May 2012).
212. Christopher Gonclaves, Breaking Rules and Changing The Game: Will Shale Gas Rocked the World?,35 Energy L. J. 225 (2014).
213. Peter R. Orszag, Natural-Gas Can Drive Us Toward a Better Future (June 12, 2012);
214. Floyd Norris, Natural Gas for Vehicles Could Use U.S. Support, N.Y. Times (June 21, 2012).
215. U.S. Energy Information Administration, Natural Gas: U.S. Natural Gas Wellhead Price. 216 National Petroleum Council, Prudent Development: Realizing the Potential of North America's Abundant Natural Gas and Oil Resources 21 (2011).
216. Alison Cassday, The Clean Power Plan: A Critical Step Toward Decarbonizing America's Energy System (April 15, 2015).
217. Union of Concerned Scientists, Gas Ceiling: Assessing the Climate Risks of an Overreliance on Natural Gas for Electricity 5(September 2013).
218. A. G. Bunch et als., Evaluation of the Impact Of Shale Gas Operations in the Barnett Shale Region on Volatile Organic Compounds in the Air and Potential Human Health Risks, 487 Sci. Total Envt. 574 (July 15, 2014).
219. Environmental Defense Fund, Natural Gas -A Briefing Paper for Candidates 16 (August 10, 2012).
220. U.S. Environmental Protection Agency, Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units; Proposed Rule, 79 Fed. Reg. 34830, 34862(June 18, 2014).
221. Coral Davenport, Obama Is Planning New Rules on Oil and Gas Industry's Methane Emissions, N.Y. Times (January 13, 1015).
222. Francis O'Sullivan & Sergey Paltsev, Shale Gas Production: Potential Versus Actual Greenhouse Gas Emissions, 7 Envt. Res. Lett. 1, 2 (2012).
223. Ohio EPA, Drilling for Natural Gas in the Marcellus and Utica Shales: Environmental Regulatory Basics (November 2012).
224. Hannah J. Wiseman, Risk and Response in Fracturing Policy, 84 U. Colo L. Rev. 729 (2013).
225. U.S. Envtl. Prot. Agency, EPA Initiates Rulemaking to Set Discharge Standards for Wastewater from Shale Gas Extraction (October 2011).
226. Thomas W. Merrill & David M. Schizer, The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy, 98 Minn. L. Rev. 145 (2013).
227. Jeffrey Dintzer & Elizabeth Burnside, Law360, Take It Easy on Fracking (March 15, 2011);
228. Amy Teimann, Why You Need to Know About Fracking -It May be Coming to a Field or Neighborhood Near You (October 8, 2011); Earthworks, The Halliburton Loophole.
229. U.S. Environmental Protections Agency, Study of the Potential Impacts of hydraulic Fracturing on Drinking Water Resources: Progress Report (December 2012).
230. U.S. Environmental Protection Agency, Assessment of the potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources: Executive Summary ES-6 (June 2015).
231. David B. Spence, The Political Economy of Local Vetoes, 93 Tex. L. Rev. 351 (2014);
232. John R. Nolan & Steven E. Gavin, Hydrofracking: State Preemption, local Power, and Cooperative Governance, 63 Case Western L. Rev. 995 (2013).
233. Nicholas St. Fleur, The Alarming Research Behind New York's Fracking Ban, The Atlantic (December 14, 2014).
234. Jack Healy, Heavyweight Response to Local Fracking Bans, N.Y. Times (January 3, 2015);
235. Jack Healy After Citizen-Led Action, Cities Face Costly Fights with Oil and Gas Industry, N.Y. Times 11 (January 5, 2015).
236. Jack Healy, Colorado Communities Take On Fight Against Energy Land Leases, N.Y. Times 15 (February 3, 2015).
237. See, e.g., U.S. Energy Info. Admin., Analysis of the Impacts of the Clean Power Plan, May 22, 2015, at http://www.eia.gov/analysis/requests/powerplants/cleanplan/#16 (discussing role of RPSs in setting state targets);
238. The Brattle Group, EPA's Clean Power Plan and Reliability: Assessing NERC's Initial Reliability Review 18-23 (Feb. 2015), at http://www.brattle.com/system/publications/pdfs/000/005/121/original/EPAs_Clean_Power_Plan_and_Reliability_- _Assessing_NERC%27s_Initial_Reliability_Review.pdf?1427375637 (discussing role of state RPSs in EPA's determination of state targets).
239. Jonathan Ramseur, Congressional Research Service, EPA's Proposed Clean Power Plan: Conversion to Mass-Based Emission Targets (Mar. 17, 2015), at https://www.fas.org/sgp/crs/misc/R43942.pdf.
240. See EPA, Fact Sheet, Clean Power Plan and Carbon Pollution Standards Key Dates, Jan. 2015, at http://www2.epa.gov/sites/production/files/2015-01/documents/20150107fs-key-dates.pdf (setting summer 2017 as deadline for states to submit individual plans and summer 2018 for states to submit multi-state plans).
241. See Rich Heidorn, Jr., MISO, SPP Stakeholders Developing Trading Plan to Comply with EPA Carbon Rule, RTO Insider, Apr. 2, 2015.
242. See Nicholas Institute for Environmental Policy Solutions, Duke University, Enhancing Compliance Flexibility under the Clean Power Plan: A Common Elements Approach to Capturing Low-Cost Emissions Reductions, Policy Brief (March 2015) (describing a situation where states develop individual plans to meet their own emissions target, rather than a multi-state plan to meet a joint target, and allow electric utilities to transfer compliance credits among units within a state and among states that share common elements in their compliance plans);
243. Georgetown Climate Center, Clean Power Plan Implementation: Single-State Compliance Approaches with Interstate Elements (May 2015) (discussing state and stakeholder interest in single-state compliance plans that would allow for the option of interstate trading of compliance instruments and elements that may be required for such programs).
244. See, e.g., Megan Herzog, Legal Planet, A Roadmap for State Comments on the Clean Power Plan, Sept. 17, 2014.
245. Current RGGI members are Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont.
246. See Jeff Day, Virginia Ponders Joining RGGI as State Weights How to Meet Clean Power Plan Goals, 93 Daily Env. Rep. A-14, May 14, 2015.
247. See Thrun v. Cuomo, Decision & Order (N.Y. Sup. Ct., Albany County, June 2012) (dismissing lawsuit based on lack of standing that alleged New York's participation in RGGI was unlawful because participation was without consent of the legislature, the RGGI regulations impose a tax not authorized by the legislature, the RGGI program is arbitrary and capricious, and the creation of RGGI violates the compact clause).
248. The Appellate Division of the New Jersey Superior Court held in March 2014 that Governor Christie acted illegally in withdrawing from RGGI without the state DEQ formally repealing the RGGI implementation rules, which require notice-and- comment.
249. See Joanne M. Foster, Gov. Christie Broke The Law When Pulling New Jersey Out Of Northeast Cap-And-Trade System, Court Rules, Climate Progress, March 25, 2014.
250. See, e.g., National Ass'n of Reg. Utility Commissioners (NARUC) & Eastern Interconnection Planning Council (EISPC), Multistate Coordination Resources for Clean Power Plan Compliance, Sample Documents for Consideration 12-14 (May 2015) (sample MOU listing a variety of policy design issues states would need to agree upon).
251. See Heidorn, supra note 241 (explaining that North Dakota has the easiest rate-based target to meet in the United States and that states like North Dakota would have to reduce their emissions even more than EPA requires if they opted for a blended regional rate).
252. See, e.g., Nicholas Institute, supra note 242 (discussing the "common elements" approach where states developed individual compliance plans to meet their own emissions targets but allowed utilities to transfer compliance credits among units within a state and among states that share common elements in their compliance plans);
253. Heidorn, supra note 241 (discussing a mechanism that would effectively set a price on carbon, similar to the cap-and-trade program to comply with the acid rain regulations and that states would use trading to reduce the cost of meeting their individual state goals); id. (describing proposal as one where "states would submit for EPA approval implementation plans using their individual mass-based targets. Once the plans are approved the states would use trading to reduce the cost of meeting their goals");
254. Georgetown Climate Center, supra note 242 (discussing state and stakeholder interest in single-state compliance plans that would allow for option of interstate trading of compliance instruments and elements that may be required for such programs).
255. See MISO, EPA Proposal to Reduce Carbon Dioxide Emissions, at https://www.misoenergy.org/WHATWEDO/EPAREGULATIONS/Pages/111%28d%29.aspx.
256. PJM, PJM Interconnection Economic Analysis of the EPA Clean Power Plan Proposal (March 2, 2015); see also Analysis Group, Electric System Reliability and EPA's Clean Power Plan: The Case of PJM 18 (March 16, 2015).
257. See Heidorn supra note 241.
258. Id.
259. Id.
260. See Rod Cuckro, Price on Carbon May be Sweet Spot for Midwest Grid Operator, EnergyWire, June 8, 2015, at http://www.eenews.net/energywire/2015/06/08/stories/1060019768.
261. See Nicholas Institute, supra note 242; Georgetown Climate Center, supra note 242.
262. David Farnsworth, Regulatory Assistance Project, Navigating the EPA's Clean Power Plan for Compliance with Renewable Energy (Feb. 11, 2015).
263. Farnsworth, supra note 258; Franz T. Litz & Jennifer Macedonia, Choosing a Policy Pathway for State 111(d) Plans to Meet State Objectives (Bipartisan Policy Center and Great Plains Initiative, April 2015).
264. See EPA, Fact Sheet, Clean Power Plan Framework, at 3, at http://www2.epa.gov/carbon-pollution-standards/fact-sheet- clean-power-plan-framework ("Adopting a mass-based goal would better allow a state or group of states to cap their tonnage of CO 2 emissions and set up a trading program if they choose that option.").
265. See Synapse Energy Economics, Inc., Final Report: Implications of EPA's Proposed "Clean Power Plan" 26-27 (Nov. 14, 2014) ("Certain regions, particularly the Northeast, already experience natural gas pipeline constraints that have caused regional spot market prices to spike to more than 35 times higher than the rest of the country.").
266. See Press Release, Am. Wind Energy Ass'n, American Wind Power Reaches Major Power Generation Milestones in 2013 (Mar. 5, 2013), available at http://www.awea.org/MediaCenter/pressrelease.aspx?ItemNumber=6184. 263 79 Fed. Reg. at 34,897.
267. E.P.A. v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1597 & n.10 (2014).
268. If utilities purchase non-EGU allowances, rather than offsets, then the allowances would likely be accompanied by co- pollutant reduction benefits at the reducing source's location. However, coal-fired power has a particularly high co-pollutant intensity -high levels of co-pollutants per ton of GHGs -and so the co-pollutant benefits of reductions at non-coal sources might not be as great as the reductions from coal-fired power plants themselves. 267 427 U.S. 246 (1976).
269. This approach is followed not only under the Clean Air Act, but also under the Clean Water Act, the Resource Conservation and Recovery Act and the Safe Drinking Water Act.
270. 79 Fed Reg. 34848-50 (2014).
271. Excellent additional sources of information about such efforts can be accessed on the websites of the Center for Climate and Energy Solutions (http://www.c2es.org/) and the Georgetown Climate Center (http://www.georgetownclimate.org/)
272. Philip A. Wallach and Alex Abdun-Nab, The Unfairness of State Standards Under the EPA's Clean Power Plan, Brookings' Fixgov: Making Government Work, July 16, 2014, http://www.brookings.edu/blogs/fixgov/posts/2014/07/16-state-standards- unfair-under-epa-clean-power-plan-wallach-abdun-nabi (last visited July 24, 2015).
273. For example, this flexibility is critical to the conclusion of one influential consulting organization that the CPP is unlikely to affect the future reliability of the electricity supply going forward. Responding to a 2014 critical assessment by the North American Electricity Reliability Corporation (NERC), the Brattle Group released a report in 2015 concluding that "The combination of the ongoing transformation of the power sector, the steps already taken by system operators, the large and expanding set of technological and operational tools available and the flexibility under the CPP are likely sufficient to ensure that compliance will not come at the cost of reliability." See Jurgen Weiss et al., EPA's Clean Power Plan and Reliability iv (2015) available at http://info.aee.net/brattle-reliability-report. The Brattle Group Report also references EPA's flexibility in allowing states to employ emission reduction technologies not included in the BSER, including co-firing coal with biomass, demand response, combined heat and power ("CHP"), and non-utility energy efficiency measures. According to the Report, "Incorporating these and other emission reduction options will lower the emission reductions that states need to achieve under the four building blocks, thereby ameliorating possible reliability concerns that may result from the strict application of BSER." Id. at viii.
274. See U.S. Environmental Protection Agency, State Goals Overview (June 2014) at 8-10 available at: http://www2.epa.gov/sites/production/files/2014-06/documents/state_goals_june24th_2.pdf (using hypothetical "Central State" whose electricity sector is highly fossil-fuel dependent, and "Western State," whose electricity sector is not, EPA states "Because Western State has relatively less fossil fuel-fired generation, a given action to reduce its CO2 emissions will have a greater impact on its CO2 emission rate than the same action would have in a state like Central State with relatively more fossil fuel-fired generation.").
275. Compare The Brattle Group, EPA's Proposed Clean Power Plan (Policy Brief: June 2014) at 11 available at: http://www.hks.harvard.edu/hepg/Papers/2014/EPAs%20Proposed%20Clean%20Power%20Plan- Implications%20for%20States%20and%20the%20Electric%20%20%20.pdf (state-specific marginal carbon dioxide abatement costs without regional cooperation) with Energy Ventures Analysis, EPA Clean Power Plan (Oct. 2014)at 23 available at: http://www.countoncoal.org/assets/Executive-Summary-EPA-Clean-Power-Plan-Costs-Impacts.pdf (showing average 2020 - 2030 "carbon penalties" by state).
276. See EPA, Proposed Carbon Pollution Guidelines for Existing Stationary Sources: Electric Utiliity Generating Units, 79 Fed. Reg. 34829, 348994 (June 18, 2014) [hereinafter, Proposed Rule].
277. See Alice Kaswan, Controlling Power Plants: The Co-Pollutant Implications of EPA's Clean Air Act § 111(D) Options for Greenhouse Gases, 32 VA. Envtl. L. Rev. 174, 184-85 (2014).
278. Id. at 39894.
279. Id. at 34893-94.
280. Id. at 34894.
281. Id.
282. Indeed, it is possible that the decrease in the hours of operation might increase the emissions rate because of inefficiencies caused by less constant operation even as it decreased the mass of emissions.
283. See EPA, Goal Computation Technical Support Document 8-15 (June, 2014). EPA's formula accomplishes this by dividing overall emissions in the state after employment of EPA's proposed measures by the amount of electricity generated to establish a statewide emissions rate.
284. See Proposed Rule, 79 Fed. Reg. at 34894 (noting that the effects of reduced generation are evident in reported carbon dioxide emissions).
285. See Michael Wara, Danny Cullenward, and Rachel Teitelbaum, Peak Electricity and the Clean Power Plan, 28 Electricity J. 18 (2015) (discussing the problem of the models underlying conversions).
286. Cap Without Trade: A Proposal for Resolving the Emissions Trading Problem Under CAA § 111, 43 Envtl. L. Rep. (Envt'l L. Inst.) 10555 (2013).
287. Joel Schwartz et al, Health Co-Benefits of Carbon Standards for Existing Power Plants (2014), available at http://www.chgeharvard.org/sites/default/files/userfiles2/Health%20Co-Benefits%20of%20Carbon%20Standards.pdf; Clean Air Task Force, Power Switch: An Effective, Affordable Approach to Reducing Carbon Pollution from Existing Fossil-Fueled Power Plants 24-25 (2014) , available at http://www.catf.us/resources/publications/files/Power_Switch.pdf;
288. GHG and co-pollutant emissions from coal-fired power plants are strongly correlated, so this essay assumes that a six percent drop in GHG emissions will lead to a corresponding drop in co-pollutant emissions.
289. 79 Fed. Reg. at 34839 (Jun. 18, 2014).
290. Moreover, the Mercury Air Toxics Standard was invalidated in Michigan v EPA, 576 U.S. ___ (2015)
291. 79 Fed. Reg. at 34936 (Jun. 18, 2014).
292. Schwartz et al, supra note 289, at 2 (predicting, by 2020 and under their energy-efficiency intensive scenario, a 27 percent decrease in sulfur dioxide emissions, a 22 percent decrease in nitrogen oxide emissions, and a 27 percent decrease in mercury emissions, all beyond existing controls), available at http://www.chgeharvard.org/sites/default/files/userfiles2/Health%20Co- Benefits%20of%20Carbon%20Standards.pdf.
293. Clean Air Task Force, supra note 289, at 25 (predicting reductions of 450,000 tons in annual sulfur dioxide and 400,000 tons in annual nitrogen oxide emissions by 2020, all in addition to existing requirements).
294. Dallas Burtraw et al., Greenhouse Gas Regulation under the Clean Air Act: A Guide for Economists 13 (2011).
295. The state or regional cap-and-trade programs can allow the use of offsets for compliance with state targets, but the state needs to ensure that the program as a whole results in the required level of actual reductions from energy sector sources.
296. See Richardson, et al., Greenhouse Gas Regulation under the Clean Air Act: Structure, Effects, and Implications of a Knowable Pathway 54 (2010).
297. The legal basis for requiring environmental justice analysis could stem from Title VI of the Civil Rights Act, which prohibits state and local agencies receiving federal funding from discriminating or causing a disparate impact. Alternatively, since the federal government must ultimately approve or disapprove state SIPs, and Executive Order 12898 requires federal agencies to consider the distributional consequences of their decisions on poor and of-color populations, a state environmental justice analysis could be considered a foundation to help EPA comply with the executive order as it evaluates whether to approve the SIP.
298. Vien Truong and Bruce Mirken, Opinion: Cap-and-Trade Funds to Struggling Communities, San Francisco Chronicle (Nov. 15, 2012), http://www.sfgate.com/opinion/openforum/article/Cap-and-trade-funds-to-struggling-communities-4042244.php (describing SB 535, which devotes auction revenue to disadvantaged communities).