Ensuring State Emission Reduction in Clean Power Plan
Joshua B. Epel is chairman of the Colorado Public Utilities Commission and chair of the National Association of Regulatory Utility Commissioners Task Force on Environmental Regulation. James K. Tarpey was a Colorado Public Utilities commissioner from January 2008 to January 2014. He is presently of counsel with Ireland Stapleton Pryor & Pascoe, P.C., a law firm located in Denver, Colorado. Nicholas Eaton is a Colorado Law graduate of 2016. He is presently serving as Judicial Law Clerk for the Honorable Nina Y. Wang, Magistrate Judge, on the U.S. District Court for the District of Colorado. Jacob Rey is a Colorado Law graduate of 2016. He is presently serving as Judicial Law Clerk for the Honorable Magistrate Judge Michael Hegarty on the U.S. District Court for the District of Colorado.
The Supreme Court's stay of the Clean Power Plan has exposed an uncomfortable dilemma. States that continue to transition to lower carbon generation may be penalized if the Environmental Protection Agency, EPA, fails to credit any reductions states achieve in the interim.
Regardless of the steps EPA may take in response to the ultimate resolution in the courts, any action must credit states for carbon reductions achieved while the fate of the plan remains uncertain.
This commitment would promote cooperation and coordination among EPA and the states consistent with cooperative federalism principles. And will likely yield more innovative solutions to the nation's most pressing environmental concerns.
There obviously is uncertainty with respect to the steps EPA will take in the event changes to the plan are required.1 This may result in a change to the compliance dates and/or changes to the carbon reduction goals.
As part of its deliberations, EPA also may consider setting a year subsequent to 2012 as the baseline year. However, updating the baseline would disregard all reductions states made in the interim, in effect penalizing them for being leaders in carbon reduction.