July | August 2017



by Clint Woods
Charged with keeping the nation’s skies clean, state air quality regulators are discovering that their to-do lists are growing dramatically.
During an already busy year for state environmental agencies, the U.S. Environ-mental Protection Agency released its final Clean Power Plan in August. This rule, designed to carry out the agency’s obligations under section 111(d) of the Clean Air Act, establishes carbon dioxide performance requirements for fossil fuel-fired power plants that reflect what EPA has determined to be the “best system of emission reduction.”
With a goal of addressing climate change and buttressing the Obama administration’s position during United Nations’ climate negotiations in Paris in November, the Clean Power Plan—or CPP—represents the first national standards addressing carbon dioxide emissions from power plants and, according to EPA estimates, will reduce these emissions by 32 percent below 2005 levels within 15 years. Over the next several years, state air quality agencies, in close collaboration with state legislators, public utility commissions, governors’ offices and other stakeholders, will be responsible for determining their paths forward.
There are several significant changes in the final CPP from the agency’s June 2014 proposal that led to some significant shifts in targets for individual states:
• EPA established state targets based on three “building blocks”: improved efficiency at power plants; shifting generation from coal plants to natural gas power plants; and shifting generation to renewable energy sources. For legal reasons, the agency chose to jettison a fourth building block related to energy efficiency for these targets but anticipates that this approach “will be a significant
component of state compliance plans,” according to information on EPA’s website.
• Unlike in the proposal, EPA established uniform performance rates for electric generating units—one for fossil steam units such as coal, oil and gas, and another for natural gas combined cycle units.
• In order to address a potential compliance “cliff” in 2020 due to front-loaded state requirements in the proposal, EPA provided additional flexibility in establishing a “glide path” of incremental emissions reductions required between 2022 and 2029.
• The agency underscored emissions trading options, including proposed model state trading rules and a federal plan, which facilitates cross-state trading. Under the final Clean Power Plan, these options will be imposed on states that do not submit a plan approved by EPA.
As a result of these and other changes in the final rule, the list of state winners and losers under the CPP has shifted substantially.
According to EPA projections, 11 states—including California, Delaware, Massachusetts, New Hampshire, New York, Oregon and Washington—will be able to emit more carbon dioxide, in some cases up to 40 percent more, under the CPP.
According to Jason Eisdorfer, utility program director for the Oregon Public Utility Commission, the investments made by his state in reducing emissions in previous years have paid off. “Oregon is proud of our clean energy investment strategy and we are in a good position to comply,” he told the U.S. House Committee on Science, Space and Technology.
Conversely, at least 10 states, including North Dakota, Ohio, Texas, Utah, West Virginia, Wisconsin and Wyoming, will be expected to make reductions of 30 percent or more by 2030.
North Dakota saw the most significant change in the final CPP, which made its state target four times more stringent than in the previous iteration of the plan.
Dave Glatt of the North Dakota Department of Health called the challenge “pretty daunting.”
While EPA pushed back the initial CPP compliance period until early 2022, states agencies and legislatures will have decisions to make in the years leading up to that deadline.
By September 2016, states are required to submit either a final state plan outlining the federally enforceable measures that will be used to comply with the CPP or an initial plan to request an extension to submit a final plan by September 2018. As early as 2016, EPA may begin issuing federal plans for states that fail to submit satisfactory state plans.
Similar to the response to the issuance of the Waters of the United States rule defining regulated waters under the Clean Water Act, states are already lining up to challenge the Clean Power Plan in court. West Virginia has led early state challenges to the rule, with Gov. Earl Ray Tomblin calling the CPP “unreasonable, unrealistic and ultimately unattainable” for his state, according an August press release.
By contrast, other states are siding with the EPA and defending the new air quality regulation. Led by Eric T. Schneiderman of New York, the attorneys general of nine states and the District of Columbia wrote in an Aug. 3 joint letter to the EPA that they “fully anticipate standing with EPA to defend these necessary emission standards if they are challenged in court.”
Even for states well-positioned to meet the 2030 requirements, the nature of the final CPP presents unique challenges for state environmental agencies as they also face increasingly demanding timelines for their traditional Clean Air Act responsibilities.
According to Dallas Baker, air director of the Mississippi Department of Environmental Quality, “In an era of diminishing appropriations and seemingly ever-increasing regulation complexity and burden, each action taken by EPA to mandate a response by my state forces us to make critical decisions involving programs, spending and personnel.”
In addition to the CPP, over the next few years states are responsible for implementation and modification activities for other major CAA programs, such as the National Ambient Air Quality Standards for sulfur dioxide, ground-level ozone (both requirements from the 2008 standard and newly announced revisions in early October), and fine particulate matter and regional haze requirements.

About The Author

Clint Woods is executive director of the Association of Air Pollution Control Agencies. The organization focuses on assisting air quality agencies and personnel with implementation of, and technical issues related to, the federal Clean Air Act.