Abby L. Harvey
GHG Monitor
10/24/2014
The government’s use of the rarely utilized section 111(d) of the Clean Air Act to develop proposed Environmental Protection Agency carbon emissions regulations transfers the responsibility of reducing the nation’s carbon emissions to the states, which will likely lead to a wide variety of mitigation actions being taken throughout different states, experts said this week at an event hosted by the Environmental Law Institute. The proposed regulations, dubbed the “Clean Power Plan,” would set emissions reduction targets for each state and require the states to develop action plans to meet those targets. Four “building block” actions to meet the targets are proposed in the rule, though the use of those actions is not mandated. “Literally the last time they used 111(d) was 20 years ago,” Bob Martineau, Commissioner of the Tennessee Department of Environment and Conservation said during a panel discussion. “The idea was the state was supposed to develop a plan that it says is what’s best for that state given its mix of units within that state. It’s a unique provision and by definition suggests that the states have a much stronger role in developing what the plan for their state should be.”
While 111(d) is a somewhat unwieldy provision, it remains the only option for regulating carbon emissions baring legislative action, which is highly unlikely, the panelists said. “It’s the only option we have. We don’t have another statute that gives EPA the authority to directly regulate carbon emissions from power plants or other sources, so that’s the tool that’s available,” said Peter Lehner, Executive Director of the Natural Resources Defense Council. He said that in terms in carbon emissions, the flexibility provided by 111(d) is necessary given the vast differences in the states. Lehner also said that should the Clean Power Plan be finalized it should be expected that the state plans will vary greatly. “Different states have different state policies on climate change, some still claim it doesn’t exist, others are seeing its impacts right now, very hard, and want to take very strong action,” he said. “My guess is whatever variance we’ve seen in complying with criteria pollutants in the past, we’ll probably see even bigger variation among the states with respect to climate change at least in the first couple years.”
If a state does not create a plan, the EPA has the authority under the rule to develop a plan for that state, which may be a strange sort of blessing for state regulators due to public mistrust in the federal government, Tracy Stone-Manning, Director of Montana Department of Environmental Quality, said. “What’s been helpful to me is as we put together sort of a model to say, what the heck would this mean for Montana? How could we comply if this were rule? When I go out and talk to the public the first thing I hear is ‘We hate the federal government’ and ‘oh my God, we do need to come up with a plan because we can’t trust the fed to come in and do it if we don’t,’” Stone-Manning said. “So that’s the one upside, is that there’s such a distrust of the federal government that if you just say, ‘Well if we don’t write the plan, they’re going to write it for us.’ They say, ‘Okay, would you please write that plan.’ So that’s helpful, but that’s perverse.”
