Clean Power Plan guidance wrong, 13 states tell EPA

Dive Brief:

Led by New York Attorney General Eric Schneiderman, 13 states and seven localities have asked the U.S. Environmental Protection Agency to withdraw guidance sent to states in March regarding compliance with the Clean Power Plan.
EPA Administrator Scott Pruitt wrote in the guidance letter that compliance with CPP deadlines is delayed while the rule is being litigated. However, the group of states and cities asserts there is no case law to back up a “day-to-day tolling” of the rule’s compliance deadlines.
The U.S. Supreme Court stayed the rule in February 2016 until legal challenges conclude. However, the Trump administration is crafting a replacement that reportedly includes a narrower set of requirements.

Dive Insight:

In addition to legal advice the attorneys general say is incorrect, Pruitt's letter would appear to break with his past commitments to recuse himself from the Clean Power Plan litigation due to conflicts of interest, they note. Pruitt sued the EPA over the rule when he was attorney general of Oklahoma.

“The facts are clear: the EPA has a legal obligation to limit carbon pollution from its largest source: fossil-fueled power plants. So if President Trump wants to repeal the Clean Power Plan, he must replace it,” Schneiderman said in a statement. “Scott Pruitt cannot simply wish away the facts by giving Governors bad legal advice."

A replacement may be coming soon. The administration is reportedly planning to replace the Obama-era rule with a narrower set of regulations aimed at thermal efficiency improvements at coal-fired power plants. The new rules would require only plant upgrades that can be made "inside the fence" of existing power plants.

The inclusion of beyond the fenceline provisions in the CPP has been a key argument that critics, including Pruitt, have used to challenge the regulations in court.

But until there is a replacement, Schneiderman said Pruitt's advice that compliance would be tolled is incorrect. There is no legal support for a unilateral extension of regulatory deadlines through a letter from the EPA administrator, Schneiderman's letter says. And, there is no legal basis to automatically extend the Clean Power Plan’s compliance deadlines for every day that the litigation remains pending.

The coalition of states and localities wrote that in addition to being "legally erroneous, Mr. Pruitt’s opining in the letters on a particular issue concerning the Clean Power Plan litigation is inconsistent with his agreement not to participate in the litigation in light of his representation of Oklahoma in the case."

In May, Pruitt recused himself from several cases he had been involved with while attorney general of Oklahoma, with the Clean Power Plan litigation among them.