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Battle Lines: 2011 Law and Lawyers Report

Generators fight back against EPA’s new regulations

Fortnightly Magazine - November 2011

companies that are taking steps to comply but need more time; consent decrees and financial incentives from FERC and regional transmission organizations (RTO) to allow continued operation of plants while reliability issues are addressed; and the authority of the president and DOE to override Clean Air Act requirements when circumstances merit such actions.

And in this respect at least, AEP seems to agree with Tierney that as a last resort, regulated companies should be able to work something out with EPA to avoid the worst possible outcomes. “It would be better to have flexibility in the rules to make it work in a fluid fashion, but I’m hopeful that at a minimum we’ll be able to work out a consent-decree approach,” Akins says.

Relying on this strategy, however, might prove risky. For one thing, EPA isn’t immune to the budget pressures that are facing all federal agencies, and cutbacks could severely limit EPA’s capacity to negotiate consent decrees with multiple companies seeking waivers or extensions all at the same time. And agency staff might prove to be less than helpful toward companies that have spent years or even decades resisting what EPA views as necessary, life-saving policy updates.

“I’m not sure enforcers at EPA will be interested in spending time and energy on negotiating consent decrees,” says Buente of Sidley Austin. “They’ll be busy with other things on their plate.”