During the week of July 28, 2014, US EPA hosted a series of hearings in Atlanta, Denver, Pittsburgh, and Washington, D.C. to take public comments on the Agency’s proposed rules to cut carbon pollution from existing fossil fuel-fired power plants.  US EPA proposed the “Clean Power Plan” on June 2, 2014, nearly a year after President Obama introduced his Climate Action Plan in which he directed the Agency via Presidential Memorandum to complete carbon pollution standards for the power sector.

Based on the seldom-used Section 111(d) of the Clean Air Act (“CAA”), the Clean Power Plan proposes guidelines for states to use in developing state implementation plans (“SIPs”) to significantly reduce carbon emissions from existing fossil fuel-fired power plants by 2030.  The proposal includes state-by-state emission reduction goals, calculated using a national formula with state specific inputs, and requires states to identify and implement the “best system of emission reduction” or “BSER,” taking into account cost and consequences of implementation.  The Plan further contains four measures – deemed “building blocks” – that states can (but are not limited to) implement to meet the reduction goals:  1) improving efficiency at existing coal-fired power plants, 2) increasing utilization of existing natural gas fired power plants, 3) expanding the use of wind, solar, or other low- or zero-emitting alternatives, and 4) increasing energy efficiency in homes and businesses.  A more detailed explanation and discussion of the proposed “building blocks” is available in a previous blog post.

As reported in a prior Client Alert, the Clean Power Plan represents a sea change in environmental policy in the United States that will substantially impact the US energy sector as well as all 50 state governments.  For this reason, US EPA is providing an expanded opportunity for stakeholders to comment on the proposal, including via the four public meetings held across the country last week.  Shaun McGrath, Administrator for EPA’s Region 8 Office, kicked off the public meeting in Denver on July 29th, which I attended, by referencing the Agency’s “unprecedented” stakeholder outreach in developing the Clean Power Plan.  He underscored the Agency’s commitment to leaving “no stone unturned” to find ways to give greater flexibility to states in developing emissions reduction programs that take into account the unique needs of energy generators within each state.

As anticipated, the hearings were well attended with a strong showing from environmental organizations and numerous representatives from industry, including from coal, renewables, labor, and utilities.  Echoing the trend in Atlanta, Pittsburgh, and Washington, supporters of EPA’s proposed rule outnumbered opponents – by a margin of more than four to one in Denver.  A handful of local elected officials, including Colorado State Senator Matt Jones and Moffat County Commissioner John Kinkaid, testified in Denver.  Several members of Congress, including Rep. Shelly Moore Capito (R-WV), Rep. Anna Eshoo (D-CA), Sen. Jeff Merkley (D-OR), Sen. Ed Markey (D-MA), and Senate Republican Leader Mitch McConnell (R-KY), testified at the Washington hearing.  Testimony broke down along partisan lines with Republicans arguing that the US EPA proposal picks winners and losers in the energy marketplace, will lead to widespread unemployment in coal country, and represents an end-run around Congress.  Democrats, on the other hand, argued that US EPA’s proposal is a responsible step toward addressing the costs of climate change that will only grow more severe in years to come.

Opponents of the rule at the Denver hearings – hailing primarily from the mining and regulated energy sector – believe the proposal is legally and technically flawed and object that it will reduce diversity of the electricity supply, raise electricity and natural gas prices to consumers and cause widespread loss of high paying jobs.  Representatives from the Colorado and Wyoming Mining Associations, who also organized a rally in front of the Colorado State Capitol in opposition to the proposed rule, and officials from coal producers with operations in Colorado and Wyoming questioned US EPA’s authority to regulate CO2 emissions and to promulgate the proposed rule under Section 111(d) of the Clean Air Act in addition to criticizing the rule’s proposed timelines as unrealistic and damaging to the industry and the economy.  At least ten representatives of the United Mine Workers Union of America testified that the proposed rule perpetuates the war on coal by unfairly targeting coal fired power plants and will have a devastating effect on coal workers and their families.  Several representatives from utilities requested that states and utilities that have already taken steps to reduce carbon emissions be better recognized and rewarded under the proposal and that the proposal address in more detail the cooperative electric utility model.  The majority of opponents (and likely supporters) to the proposed rule plan to follow their testimony with extensive written comments.

Since US EPA issued the proposed Clean Power Plan on June 2, 2014, the Agency announced that it has already received more than 300,000 written comments.  The comment period closes on October 16, 2014.