EPA has a lot to consider in finalizing its rule directing states to create programs to reduce greenhouse gas (GHG) emissions from fossil fuel fired electric generating units.  The public comment period on a recently proposed rule generated 1.6 million comments from companies, governmental agencies and members of the public.

EPA targets June 2015 for publication of the Final Rule, though such targets are not set in stone.  In the proposed rule, published on June 2, 2014,  EPA direct states to create their own programs to reduce GHG emissions from the power sector by 30% by 2030.  While providing state-specific goals and some guidance, EPA left the details to the states.  Such flexibility is one of the hallmarks of this rule, allowing the states’ plans to be tailored to meet the energy, environmental and economic goals of the individual state.

Now, EPA turns inward and considers the comments in finalizing the rule.  In the meantime, practitioners and regulators meet to discuss how this rule and other measures addressing climate change will play out.  In January 2015, the Rocky Mountain Mineral Law Foundation and the Edison Electric Institute offer a summit to debate the laws and regulations aimed at addressing climate change.  See RMMLF/EEI — Special Institute on Climate Change Law and Regulations:  Planning for a Carbon Constrained Regulatory Environment

At issue in the debates surrounding this proposed rule, and the subject of some litigation, is the question of EPA’s authority to regulate GHG emissions and the ability to direct states to address this global issue in state-specific plans.  The proposed rule was drafted under the auspices of EPA exercising its authority under section 111(d) of the Clean Air Act.  Specific panels at the RMMLF Climate Change Summit directly address this jurisdictional issue and invite discussion about whether EPA has the authority and whether it is subject to legal challenge. Invitees will also consider whether the resulting state-specific patchwork of regulation will combine for regional programs (such as the Northeast’s RGGI) and whether the states will have to strive to meet the programs in some early acting states (such as California).  While the electric industry is the focus of the proposed rule, other fields see the writing on the wall and see the benefit of early debate.

Back at EPA, with 1.6 million comments, and several lawsuits pending challenging the timing and authority of the rule, it seems unlikely EPA will make the June 2015 target to finalize the rule.