States demand answers from EPA on delay of Clean Power Plan publication

West Virginia Attorney General Patrick Morrisey on Oct. 7 announced that his office has made a Freedom of Information Act (FOIA) request for communications between the U.S. Environmental Protection Agency (EPA) and the Office of the Federal Register regarding the publication of the absolutely final Clean Power Plan.

EPA issued the final rule on Aug. 3, but the federal courts have said that it can’t be legally challenged until it is published in the Federal Register. In the meantime, the clock is ticking for states to comply with various Clean Power Plan deadlines. The plan calls for a 32% reduction of greenhouse gas emissions from existing power plants by 2030. West Virginia, the second largest coal-producing state in the U.S., had been one of the states that tried to appeal the draft version of the rule.

The information request was joined by 14 states, including West Virginia, Arizona, Arkansas, Colorado, Florida, Georgia, Louisiana, Nebraska, North Dakota, Oklahoma, South Carolina, Texas, Wisconsin and Kentucky.

“Publishing a rule typically occurs much faster than it has in this case,” Morrisey said. “Our goal is to understand the cause behind the unusually long delay between the finalization and publication of the Clean Power Plan.”

He added: “We want to help the public understand why one of most widely criticized rules in our nation’s history is being subject to such unexplained delays. This harms the States and undermines the availability of review by our courts.”

States are now experiencing significant and irreversible harm attempting to comply with EPA’s demands because the now-final CPP Rule forces certain deadlines for plan submissions by the states regardless of the date of publication.

“The impacts of this rule are already devastating to West Virginia and across the United States,” Morrisey said. “It is my duty as the chief legal officer of the State of West Virginia to fight back against this sweeping and unlawful power grab that is harming our State and hardworking West Virginia families.”

Said the information request to EPA: “EPA has provided inconsistent explanations—at best regarding its role in the publication of the Rule in the Federal Register and the long delay between finalization and publication. EPA’s General Counsel wrote in a letter to States in early August that EPA ‘is moving expeditiously to have the final rule published in the Federal Register,’ but on the previous day, the same General Counsel told the States on a conference call that EPA has no control over the Federal Register process. A few weeks later—in response to an order by the United States Court of Appeals for the D.C. Circuit—EPA was forced to admit that the Rule will likely not be published until late October. And again, EPA claimed to have no control over the long delay in the publication process. Despite signing the Rule as final on August 3, EPA had not even submitted the Rule to the Office of Federal Register (‘OFR’) to begin the publication process until September 4. At a minimum, EPA is responsible for the initial month-long delay before submission to OFR. This request is intended to help the public understand why one of most touted—and widely criticized—rules in this Nation’s history is being subject to such unexplained delays that harm the States and undermine the availability of judicial review.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.