Setting up a straw man to fight the Clean Power Plan

By: - November 4, 2015 12:22 pm


Officials from the state Division of Air Quality are set to meet this afternoon and tomorrow with the Environmental Management Commission to seek expedited approval of its plan to address power plant carbon emission reductions required under the federal Clean Power Plan.

By all accounts, the division will present a proposal that misses the 32 percent reduction target set by the Environmental Protection Agency and is headed for rejection at the federal level. Nonetheless, the division will ask the commission to waive a required 30-day review period and instead approve the plan, less than a day after it discloses the details.

Officials are rushing the plan through, not because of any hard-and-fast deadlines nor out of a good-faith commitment to meet federal greenhouse gas reduction targets but because they’re trying to tee up a battle in the courts against the EPA.

“This federal overreach presents a clear choice: do you want Washington D.C or North Carolina to control energy generation in our state?,” DEQ Secretary Donald van der Vaart said in a statement after the division joined 23 other states in a lawsuit filed in late October challenging the federal plan.

Those states want the court to block implementation of the Clean Power Plan while the judges sort out its legal merits. Unlike North Carolina, many are nonetheless developing plans to meet the federal carbon emission targets and thus have no actual, ripened controversy with the EPA.

North Carolina apparently wants to be the first to present a plan for rejection so it can square off against the federal agency in court, turning an opportunity to further reduce carbon emissions and expand the state’s renewable energy portfolio into a politicized turf war instead.

That’s a high-stakes game, according to Jonas Monast, who directs the Climate and Energy Program at Duke University’s Nicholas Institute for Environmental Solutions.

“The irony with the DEQ approach is it could leave the state with less control of its carbon-reduction program,” Monast told the Charlotte Business Journal. “If the EPA successfully defends the challenge and the EPA denies DEQ’s plan, it can impose a federal plan it is developing without the states.”


The Clean Power Plan, one of several steps the Obama administration has taken to reduce the country’s greenhouse gas emissions over the next decade (others include stricter fuel economy standards for cars and other vehicles), addresses carbon dioxide emissions by coal-burning power plants.

Rather than calling on just the power plants to reduce emissions, the plan requires the states to develop a more comprehensive plan to address greenhouse gas within their own borders and encourages them also to work across state lines as necessary to address regional concerns.

The federal rules as finally promulgated in August 2015 set emission targets for each state to meet by 2030, but give the states flexibility in designing their own plans to cut emissions through the use of certain “building blocks.”

Those blocks include improving efficiency at coal-burning power plants, shifting power generation from coal to natural gas, and expanding renewable energy alternatives.

The states have until September 2016 to develop plans but can get extensions that take them into 2018 if necessary.

North Carolina’s targeted emission reduction rate is 32 percent — a number which, according to environmental groups, officials have already conceded the state will not meet under the plan being presented today and tomorrow to the EMC.

The state proposal also will not be comprehensive in scope, focusing only on the reduction of emissions at existing plants rather than also considering switches to natural gas plants and expanded energy alternatives.

That’s the extent to which the state has authority to act under existing federal law, division officials contend, alluding to one of the key battles expected in the coming court fight.

The states challenging the Clean Power Plan argue that the federal Clean Air Act only allows regulators to address emissions cutting at existing power plants and that the so-called building blocks push states outside that authorized fence of regulation.

But the EPA and environmental advocates say that that’s a distinction without a difference.

“The agency says new renewables and improved energy efficiency will lead to reduced use of fossil power,” wrote Nathan Richardson, a visiting fellow at the environment think-tank Resources for the Future.

“These causal links can be traced and the resulting emissions reductions therefore attributed to specific power plants just as if the plants had installed emissions-reducing technology at the plant.”


The ink had barely dried on the final Clean Power Plan rules when 24 states including North Carolina and led by West Virginia rushed into federal court to seek a review. (Two other states, North Dakota and Oklahoma filed separate actions.)

Most of those states are led by Republican governors or, where not, are heavily dependent upon coal, and all are represented by their attorneys general, except North Carolina.

“Our office has not decided to join or decline any suit related to the Clean Power Plan,” Noelle Talley, public information officer for Attorney General Roy Cooper said in an email.

“The Department of Environmental Quality represents itself in this matter rather than the state of North Carolina. To our knowledge, our office was not asked by DEQ to join the Clean Power Plan lawsuit.”

Cooper did, though, express his concerns over the state’s proposed court fight in a letter he sent to legislative leaders in August, when a bill authorizing the DEQ secretary to file a lawsuit challenging the federal plan was being debated.

“I am concerned that this action will risk North Carolina’s well-deserved reputation for protecting the quality of our air, recruiting businesses that produce cutting-edged technologies and offering leadership around the world on energy issues,” Cooper wrote.

In the lawsuits, filed in the U.S. Circuit Court of Appeals for the D.C. Circuit – where federal regulatory review cases are heard – the states are also asking for a stay of the Clean Power Plan pending a resolution of their claims.

“The states are being immediately and irreparably harmed by EPA’s illegal effort to force States to reorder their electrical generation systems,” the states contend in papers filed with the court. “This case involves an unprecedented, unlawful attempt by an environmental regulator to reorganize the nation’s energy grid.”

But the EPA says a stay is unnecessary, since the states have nearly three years to develop acceptable plans and up to seven years to meet initial compliance dates.

While a number of coal industry groups and organizations like the U.S. Chamber of Commerce also filed suit challenging the Clean Power Plan, at least ten states and a number of environmental groups have asked to intervene in the now-consolidated cases in support of the EPA.

“By suing to block the Clean Power Plan, DEQ is challenging a pollution standard that as a practical matter North Carolina is well on its way to meeting already thanks to proactive state policies enacted under prior administrations, like the Clean Smokestacks Act and the Renewable Energy Portfolio Standard,” Gudrun Thompson, an attorney with the Southern Environmental Law Center said in the Charlotte Business Journal.

“Instead of using the Clean Power Plan as a political football, DEQ should take advantage of the Clean Power Plan’s flexibility to design a plan that could continue boosting North Carolina’s clean-energy economy.”

Update:  The DEQ announced this afternoon that, in addition to the plan the Division is presenting for expedited approval today and tomorrow, it will be developing a “back up plan” within the two-year time frame required of states requesting an extension.  No details of such a back-up plan have been identified. “The decision to develop a backup plan was made after DEQ met with stakeholders including industrial groups, utility companies and special interest groups to discuss the best path forward for North Carolina,” the division said in a news release.


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Sharon McCloskey

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at or @sharonmccloskey.