EPA’s Clean Energy Incentive Program: Background and Legal Developments

Congressional research reportAug 29, 2016

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EPA’s Clean Energy Incentive Program:

Background and Legal Developments

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August 29, 2016

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R44607

EPA’s Clean Energy Incentive Program: Background and Legal Developments

Summary

In 2015, the U.S. Environmental Protection Agency (EPA) established the Clean Energy Incentive

Program (CEIP) as a voluntary complement to its regulatory program known as the Clean Power

Plan (CPP). The goal of the CPP is to reduce carbon dioxide (CO2) emissions from existing

fossil-fuel-fired electric power plants, which produced 30% of all U.S. greenhouse gas emissions

in 2014. The CEIP would support that objective by promoting CO2 emission reductions before the

CPP is scheduled to take effect in 2022.

The CEIP is a voluntary program that would encourage states to develop energy efficiency

measures and renewable energy projects. To participate, a state would need to include specific

design elements in its CPP state plan that is submitted to EPA for approval. The CEIP would

establish a system to award either emission rate credits (measured in pounds of CO2 emissions

per megawatt-hour) or emission allowances (measured in tons of CO2 emissions) that can be used

to meet state emission reduction targets for two categories of activities:

1. Energy efficiency and solar renewable energy projects in low-income

communities, and

2. Renewable energy projects in participating states.

Renewable energy projects would receive one credit/allowance from the state and one credit from

EPA for every two megawatt-hour of renewable energy generation. Projects in low-income

communities would receive double credits. Under a mass-based approach, EPA would match up

to the equivalent of 300 million emission allowances nationally: Half of the credits/allowances

would support renewable energy projects, and half would support energy efficiency and solar

energy projects in low-income communities. The amount of EPA credits/allowances potentially

available to each state participating in the CEIP would depend on the relative amount of emission

reduction each state is required to achieve under the CPP. Thus, states with greater reduction

requirements would have access to a greater share of the EPA credits.

EPA’s CPP has generated significant interest from Congress and a wide range of stakeholders.

Some Members in the 114th Congress have made several attempts to prevent the implementation

of the CPP and more recently the CEIP. In particular, both the Senate and the House passed a

resolution of disapproval pursuant to the Congressional Review Act, which President Obama

vetoed in December 2015. In July 2016, the House passed H.R. 5538 (Department of the Interior,

Environment, and Related Agencies Appropriations Act, 2017), which would prohibit EPA from

using appropriations to “finalize, implement, administer, or enforce” the CEIP proposed rule.

The CPP is the subject of ongoing litigation involving most states and over 100 entities. In

February 2016, the Supreme Court stayed the implementation of the rule for the duration of the

litigation. The CPP final rule therefore currently lacks enforceability or legal effect, and if the rule

is ultimately upheld, some of the deadlines would likely be delayed.

EPA published the CEIP proposed rule in June 2016 to provide additional implementation details

for states wishing to participate in the program. EPA’s release of the CEIP proposed rule has

raised questions regarding the agency’s legal authority to move forward with the CEIP while the

CPP is stayed. Although some argue that the stay requires EPA to “put its pencil down” and stop

all work related to the CPP, EPA believes that it has sufficient authority to move forward with

rulemakings that relate to the stayed CPP. To support this assertion, EPA points to several

instances when it continued to revise provisions related to previously stayed regulations.

However, there are few judicial opinions that address the types of activities allowed during a

judicial stay.

Congressional Research Service

EPA’s Clean Energy Incentive Program: Background and Legal Developments

Contents

Introduction ..................................................................................................................................... 1

CEIP Proposed Rule—Overview .................................................................................................... 2

Legal Status of the CPP and CEIP ................................................................................................... 6

Figures

Figure 1. Proposed Distribution of CEIP Allowances by State and Tribe ....................................... 4

Tables

Table 1. Proposed Distribution of CEIP Allowances by State and Tribe......................................... 5

Contacts

Author Contact Information ........................................................................................................... 11

Congressional Research Service

EPA’s Clean Energy Incentive Program: Background and Legal Developments

Introduction

The U.S. Environmental Protection Agency (EPA) established the Clean Energy Incentive

Program (CEIP) as a voluntary complement to its regulatory program known as the Clean Power

Plan (CPP).1 The CEIP is intended to promote early reductions of carbon dioxide (CO2) emissions

before the CPP is scheduled to take effect in 2022. The goal of the CPP is to reduce CO2

emissions from existing fossil-fuel-fired electric power plants, which produced 30% of all U.S.

greenhouse gas emissions in 2014.2 Economic modeling indicates that the CPP would

significantly reduce future CO2 emission levels from U.S. electricity generation.3 The CEIP

would support this objective by supporting renewable energy electricity generation and energy

efficiency activities through early action incentives.

The CPP has generated considerable controversy and garnered interest from Congress and a wide

range of stakeholders. After EPA proposed the CPP in 2014,4 the agency received more than 4.2

million public comments.5 Some Members in the 114th Congress have made several attempts to

hinder the implementation of the CPP. In particular, after EPA published its CPP final rule in

October 2015,6 both the Senate and the House passed a resolution of disapproval pursuant to the

Congressional Review Act.7 President Obama vetoed the resolution in December 2015. If

enacted, the resolution would have prohibited the CPP rulemaking from taking effect.8

More recently, the House passed H.R. 5538 (Department of the Interior, Environment, and

Related Agencies Appropriations Act, 2017) on July 14, 2016. Section 495 of this bill would

prohibit EPA from using appropriations to “finalize, implement, administer, or enforce” the CEIP

proposed rule.9

Various state and industry parties applied to the Supreme Court in late January 2016 for an

immediate stay of the CPP final rule.10 In a move that surprised many observers, the Supreme

Court issued a stay of the final rule until the legal challenges have been resolved.11

See EPA’s CPP website at https://www.epa.gov/cleanpowerplan/clean-power-plan-existing-power-plants.

EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2014, April 2016, https://www3.epa.gov/

climatechange/ghgemissions/usinventoryreport.html.

For more information, see CRS Report R44451, U.S. Carbon Dioxide Emission Trends and the Role of the Clean

Power Plan, by (name redacted)

EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,”

Proposed Rule, 79 Federal Register 34830, June 18, 2014.

EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,”

Final Rule, 80 Federal Register 64662, 64707, October 23, 2015 (hereinafter “CPP Final Rule”).

Ibid., at 64662.

The Senate passed Senate Joint Resolution 24 on November 17, 2015. The House passed the same resolution on

December 1, 2015.

For more details, see the “Congressional Review” section in CRS Report R44341, EPA’s Clean Power Plan for

Existing Power Plants: Frequently Asked Questions, by (name redacted) et al.

H.R. 5538, 114th Cong. §495 (2016).

See CRS Legal Sidebar WSLG1485, Circuit Court Denies Stay of Clean Power Plan; States Ask Supreme Court to

Step In (Part 1), by (name redacted)

; and CRS Legal Sidebar WSLG1489, UPDATED: Circuit Court Denies Stay

of Clean Power Plan; States Ask Supreme Court to Step In (Part 2), by (name redacted)

Order in Pending Case, West Virginia v. EPA, No. 15A773 (S. Ct. Feb. 9, 2016), available at

https://www.supremecourt.gov/orders/courtorders/020916zr1_8mj9.pdf.

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EPA’s Clean Energy Incentive Program: Background and Legal Developments

The first section of this report discusses the details of the CEIP proposed rule. The second section

discusses the legal status of the CPP and how the Supreme Court stay may or may not affect the

CEIP rulemaking developments.

CEIP Proposed Rule—Overview

EPA established the framework of the CEIP in its CPP final rule in 2015 and published a

proposed rule for the CEIP in the Federal Register on June 30, 2016.12 The proposed rule seeks to

provide additional detail, clarify certain elements that were previously outlined, and alter some of

the program eligibility requirements.

The CEIP, as described in the proposed rule, is a voluntary program that would encourage states

to support energy efficiency measures and renewable energy projects before the first CPP

compliance obligations are scheduled to take effect in 2022. Under the CPP, states would submit

plans to EPA detailing how they would comply with state-specific interim and final targets. The

CPP allows states to use either emission rate targets (measured in pounds of CO2 emissions per

megawatt-hour [MWh] of electricity generation) or mass-based targets (measured in tons of CO2

emissions). In addition, states would need to include particular design elements in their plans in

order to participate in the CEIP.

The CEIP would establish a system to award either emission rate credits or emission allowances

for two categories of activities:

1. Energy efficiency and solar renewable energy projects in low-income

communities, and

2. Renewable energy projects in participating states.

The proposed rule altered these two categories from the CEIP introduced in 2015 by adding solar

power projects to the low-income community category and expanding the scope of renewable

energy project types to include not only wind and solar but also geothermal and hydropower.

Electricity generated from nuclear power or biomass would not qualify.

Regarding the definition of a “low-income community,” EPA decided to let states choose the

scope of this term and include the details in their respective state plans. The proposed rule states

EPA proposes to provide states with the flexibility to use existing local, state or federal

definitions that best suit their specific economic and demographic conditions while

ensuring that eligible projects and programs receiving incentives are benefitting lowincome communities.13

The proposed rule modified the eligibility start date for projects. Eligible energy efficiency

projects in low-income communities would include those that commence operation on or after

September 6, 2018. EPA defines “commence operation” as “the date that a CEIP-eligible lowincome community demand-side [energy efficiency] project is delivering quantifiable and

verifiable electricity savings.” Eligible renewable energy projects, including solar power projects

in low-income communities, would include those that commence commercial operation on or

after January 1, 2020.

EPA, “Clean Energy Incentive Program Design Details,” 81 Federal Register 42940, June 30, 2016 (hereinafter

“CEIP Proposed Rule”).

Ibid., at 42961.

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EPA’s Clean Energy Incentive Program: Background and Legal Developments

Renewable energy projects would receive one credit/allowance from the state and one credit from

EPA for every two MWh of renewable energy generation in 2020 and 2021. Projects in lowincome communities would receive double credits: For every two MWh of generation from solar

power or avoided electricity generation through energy efficiency, these projects would receive

two credits/allowances from the state and two from EPA.

The CEIP credits take the form of emission rate credits or emission allowances, depending on

whether a state plan chooses an emission rate or mass-based target. The credits/allowances could

be sold to or used by an affected emission source to comply with the state-specific emission or

emission rate reduction requirements. In a CO2-constrained regime, these credits/allowances

would have monetary value. For example, in the Regional Greenhouse Gas Initiative, a CO2 capand-trade program involving nine Northeast states, emission allowances have sold at auction at

prices between $2 per ton and $7.50 per ton.14

EPA requires state plans to ensure that state-issued credits/allowances for the CEIP will maintain

the stringency of the emission or emission rate targets. For example, for mass-based plans, EPA

proposes that states allocate CEIP allowances from the state’s CPP emission allowance budget in

its first compliance period (2022-2024).15 For states using a rate-based approach, EPA proposes

that states apply an adjustment factor to any credits issued in the CPP’s first compliance period to

account for credits issued pursuant to the CEIP.16

In contrast to state-issued credits/allowances, states do not need to account for the matching

credits/allowances provided by EPA.17 The proposed rule does not provide details as to the source

of the EPA’s matching pool. For mass-based programs, EPA would match up to the equivalent of

300 million emission allowances nationally during the CEIP program life.18 Half of the EPA’s

pool of matching credits would support renewable energy projects, and half would support energy

efficiency and solar energy projects in low-income communities. The amount of EPA

credits/allowances potentially available to each state participating in the CEIP depends on the

relative amount of emission reduction each state is required to achieve. States with greater

reduction requirements would have access to a greater share of the EPA credits.

Figure 1 illustrates the allowances available to each state, assuming the state were to adopt a

mass-based approach in its compliance plan. Table 1 presents the same information, in list form,

alphabetically by state.

In its proposed rule, EPA seeks comments from stakeholders on multiple issues. In particular,

EPA seeks comments regarding the intersection of the CEIP and the recently renewed tax credits

for renewable energy. On December 18, 2015, the President signed into law the Consolidated

Appropriations Act, 2016 (P.L. 114-113), which, among other provisions, extended and modified

the production tax credit and the investment tax credit for specific renewable energy

technologies.19 Prior to the December 2015 development, the PTC had expired and the ITC was

scheduled to expire at the end of 2016.

See auction results at http://rggi.org/market/co2_auctions/results; and CRS Report R41836, The Regional

Greenhouse Gas Initiative: Lessons Learned and Issues for Congress, by (name redacted)

CEIP Proposed Rule, at 42959.

Ibid.

Ibid., at 42958.

Under an emission rate reduction scheme, EPA would match up to 375 million emission rate credits. See 42950 of

the proposed rule for EPA’s rationale in setting the size of the emission allowance and emission rate credit pool.

See National Renewable Energy Laboratory, Impacts of Federal Tax Credit Extensions on Renewable Deployment

(continued...)

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EPA’s Clean Energy Incentive Program: Background and Legal Developments

Some groups have raised concern about the CEIP rewarding projects that would have been

constructed anyway, especially in the context of the extended tax incentives.20 EPA is seeking

comments on how to design a mechanism in the CEIP that would address this possibility.

Figure 1. Proposed Distribution of CEIP Allowances by State and Tribe

Assumes States Adopt a Mass-Based Approach

Source: Prepared by CRS; EPA, “Clean Energy Incentive Program,” 81 Federal Register 42953, June 30, 2016.

Notes: EPA did not establish emission targets for Vermont and the District of Columbia because they do not

currently have affected electric generating units (EGUs). EPA stated that Alaska, Hawaii, and the two U.S.

territories with affected EGUs (Guam and Puerto Rico) will not be required to submit state plans on the

schedule required by the final rule because EPA “does not possess all of the information or analytical tools

needed to quantify” the best system of emission reduction for those areas.

(...continued)

and Power Sector Emissions, February 2016, http://www.nrel.gov/docs/fy16osti/65571.pdf.

See, for example, Natural Resources Defense Council, comments for EPA proposed rule, “Federal Plan

Requirements for Greenhouse Gas Emissions from Electric Utility Generating Units Constructed on or Before January

8, 2014; Model Trading Rules; Amendments to Framework Regulations,” 80 Federal Register 64966, October 23,

2015, http://insideepa.com/sites/insideepa.com/files/documents/feb2016/epa2016_0302a.pdf; testimony of James

Watson for EPA Public Hearing on CEIP, American Petroleum Institute, August 3, 2016, http://insideepa.com/sites/

insideepa.com/files/documents/aug2016/epa2016_1694a.pdf.

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EPA’s Clean Energy Incentive Program: Background and Legal Developments

Table 1. Proposed Distribution of CEIP Allowances by State and Tribe

Assumes States Adopt a Mass-Based Approach

State

Renewable Energy

Allowances

Low-Income

Community

Allowances

Total Allowances

Measured in Short Tons of CO2 Emissions

Alabama

4,683,458

9,366,916

Arizona

2,579,426

5,158,852

Arkansas

3,280,844

6,561,688

California

328,268

656,536

Colorado

3,334,788

6,669,576

Connecticut

104,122

208,244

Delaware

207,588

415,176

Florida

4,845,372

9,690,744

Georgia

4,133,434

8,266,868

Idaho

22,392

44,784

Illinois

8,953,081

17,906,162

Indiana

8,631,114

17,262,228

Iowa

3,286,774

6,573,548

Kansas

3,173,445

6,346,890

Kentucky

7,429,292

14,858,584

Louisiana

2,246,141

4,492,282

Maine

31,109

62,218

Maryland

1,459,162

2,918,324

255,705

511,410

Michigan

5,591,791

11,183,582

Minnesota

3,004,354

6,008,708

Mississippi

535,959

1,071,918

Missouri

5,656,983

11,313,966

Montana

1,965,515

3,931,030

Nebraska

2,222,542

4,445,084

Nevada

504,431

1,008,862

New Hampshire

161,696

323,392

New Jersey

669,007

1,338,014

New Mexico

1,234,572

2,469,144

New York

836,656

1,673,312

North Carolina

4,011,884

8,023,768

North Dakota

3,225,953

6,451,906

Ohio

7,182,558

14,365,116

Massachusetts

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EPA’s Clean Energy Incentive Program: Background and Legal Developments

Oklahoma

3,100,508

6,201,016

Oregon

231,529

463,058

Pennsylvania

7,559,018

15,118,036

Rhode Island

53,511

107,022

South Carolina

2,479,202

4,958,404

South Dakota

396,310

792,620

Tennessee

3,267,125

6,534,250

Texas

15,600,288

31,200,576

Utah

2,101,783

4,203,566

Virginia

2,079,819

4,159,638

Washington

1,127,151

2,254,302

West Virginia

5,260,335

10,520,670

Wisconsin

3,590,805

7,181,610

Wyoming

4,656,486

9,312,972

8,827

17,654

2,434,598

4,869,196

263,264

526,528

Fort Mojave Tribe

Navajo Nation

Ute Tribe

Source: Prepared by CRS; EPA, “Clean Energy Incentive Program,” 81 Federal Register 42953, June 30, 2016.

Notes: EPA did not establish emission targets for Vermont and the District of Columbia because they do not

currently have affected electric generating units (EGUs). EPA stated that Alaska, Hawaii, and the two U.S.

territories with affected EGUs (Guam and Puerto Rico) will not be required to submit state plans on the

schedule required by the final rule because EPA “does not possess all of the information or analytical tools

needed to quantify” the best system of emission reduction for those areas.

Legal Status of the CPP and CEIP

Parties began filing petitions for review in the U.S. Court of Appeals for the District of Columbia

Circuit (D.C. Circuit) challenging the CPP final rule starting on the day the rule was published in

the Federal Register, October 23, 2015.21 By the December 22, 2015, petition deadline, more

than a hundred parties, including 27 states, filed dozens of petitions challenging the CPP.22

Eighteen states, the District of Columbia, five cities, one county, over a dozen nonprofit

organizations, and other parties intervened to support the CPP.23 On February 9, 2016, the

Supreme Court issued an order staying the legal effect of the rule for the duration of the

litigation.24 A stay is generally defined as the “postponement or halting of a proceeding,

See, for example, Petition for Review, West Virginia, et al. v. EPA, No. 15-1363 (D.C. Cir. Dec. 22, 2015); EPA,

“Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, Final Rule,”

80 Federal Register 64661, 64663, October 23, 2015.

For more details, see CRS Report R44480, Clean Power Plan: Legal Background and Pending Litigation in West

Virginia v. EPA, by (name redacted)

; and the “Judicial Review” section in CRS Report R44341, EPA’s Clean

Power Plan for Existing Power Plants: Frequently Asked Questions, by (name redacted) et al.

Ibid.

See Order in Pending Case, West Virginia v. EPA, No. 15A773 (S. Ct. Feb. 9, 2016) (granting the application for a

stay and ordering that the CPP “is stayed pending disposition of the applicants’ petitions for review in the United States

Court of Appeals for the District of Columbia Circuit and disposition of the applicants’ petition for a writ of certiorari,

(continued...)

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EPA’s Clean Energy Incentive Program: Background and Legal Developments

judgement, or the like.”25 Therefore, EPA cannot implement or enforce the CPP during the stay. If

the rule is ultimately upheld, some of the deadlines for the states will likely be delayed.26

While the CPP litigation progresses, with oral arguments before the en banc D.C. Circuit set to

occur on September 27, 2016,27 EPA continues to work on the CEIP and other measures to

complement the implementation of the CPP if it survives legal challenge.

EPA’s release of the CEIP proposed rule following the Supreme Court’s order has raised questions

regarding the agency’s legal authority to move forward with the CEIP and other related measures

while the CPP is stayed. The House Committee on Energy and Commerce sent a letter to EPA

Administrator Gina McCarthy stating, “Continuing to develop a suite of derivative rules and

guidance raises questions about whether EPA is complying fully with the Court’s stay order,

about what legal authority the agency has to proceed with such actions.”28 Some have argued that

EPA is effectively enjoined from engaging in any activities relating to the CPP, which would

include the CEIP.29 Although some have interpreted the stay to require EPA to “put its pencil

down”30 and stop all work related to the CPP, EPA believes that the stay halts only the legal effect

and enforceability of the CPP and does not prevent EPA from continuing activities that relate to

the CPP but that do not impose legal obligations.

An agency or court may stay the effective date of an agency action pending judicial review. In

Nken v. Holder, the Supreme Court explained that, unlike an injunction, which

direct[s] the conduct of a particular actor, a stay operates upon the judicial proceeding

itself. It does so either by halting or postponing some portion of the proceeding, or by

temporarily divesting an order of enforceability. A stay pending appeal certainly has

some functional overlap with an injunction, particularly a preliminary one. Both can have

the practical effect of preventing some action before the legality of that action has been

conclusively determined. But a stay achieves this result by temporarily suspending the

source of authority to act—the order or judgment in question—not by directing an actor’s

conduct.31

Both EPA and opponents of the CPP cite Nken v. Holder to support their positions on what

actions, if any, EPA is permitted during the stay of the CPP. In the CEIP proposed rule, the agency

cites Nken to argue that “EPA has not been enjoined by any court from continuing to work with

(...continued)

if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate

automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its

judgment.”), available at https://www.supremecourt.gov/orders/courtorders/020916zr1_8mj9.pdf.

Stay, Black’s Law Dictionary (10th ed. 2014).

For EPA’s interpretation on the effect of the stay on the CPP deadlines, see Janet G. McCabe, Acting Assistant

Administrator, EPA, letter to Senator James Inhofe, chairman, Senate Committee on Environment and Public Works,

April 18, 2016, http://www.epw.senate.gov/public/_cache/files/ca20cabb-4494-47af-822c-3e814707eb80/epa-responseto-tolling-letter-04-18-2016.pdf.

West Virginia v. EPA, No. 15-1363, Order at 2 (D.C. Cir. May 16, 2016).

Representative Fred Upton, chairman et al., House Committee on Energy and Commerce, letter to Gina McCarthy,

Administrator, EPA, May 13, 2016, https://energycommerce.house.gov/sites/republicans.energycommerce.house.gov/

files/documents/114/letters/20160613EPA.pdf.

Abby Harvey, “Court Comes to Congress in Discussion of CPP Stay,” Exchange Monitor, June 10, 2016,

http://www.exchangemonitor.com/publication/ghg-daily-monitor/court-comes-congress-discussion-cpp-stay.

Richard Revesz, “Supreme Court Ruling on Clean Power Plan Doesn’t Halt EPA Action or Change Timeline,” The

Hill, March 16, 2016, http://thehill.com/blogs/pundits-blog/energy-environment/273189-supreme-court-ruling-onclean-power-plan-doesnt-halt.

Nken v. Holder, 556 U.S. 418, 428 (2009) (internal citations omitted).

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EPA’s Clean Energy Incentive Program: Background and Legal Developments

state partners in the development of frameworks to reduce CO2 emissions from affected EGUs.”32

In a request to extend the comment deadline for the CEIP proposed rule, a coalition of 27 states

and state agencies (many of which are petitioners in the CPP litigation33) also cites Nken to

support its claim that “the agency cannot require States to take any action related to the Power

Plan during the stay.”34

The state coalition argues that any actions regarding the CEIP that trigger deadlines for noticeand-comment “would improperly compel action by States to take action ... on a proposal that

would not exist but for the [Clean] Power Plan.”35 The coalition claims that the states are forced

to act before the stay is lifted because not commenting on the CEIP proposed rule would “forgo

their right to raise objections to the CEIP immediately upon judicial review.”36 The letter cites

past regulatory efforts to support their claim that “granting an extension would also be consistent

with the practice followed by other federal agencies that have promulgated rules potentially

affected by pending litigation.”37 The coalition requests that EPA extend the proposed CEIP’s

comment deadline for at least 60 days following the termination of the CPP stay,38 arguing that

this would also be consistent with the purpose of notice and comment to “ensure the States’ full

and robust participation[,] not harm EPA or the public interest[, and] could save significant public

resources by postponing any further work on the CEIP until it is clear whether the [Clean] Power

Plan has survived judicial review.”39 On August 25, 2016, EPA extended the comment period by

60 days until November 1, 2016, stating that this change “allows for requested tribal

consultation” on the proposed CEIP rule.40

In contrast, EPA believes that it has sufficient authority to move forward with rulemakings that

relate to the stayed CPP. EPA stated that “while the legal effectiveness of the Clean Power Plan is

currently stayed, the EPA has determined that it is appropriate to move forward with the design

CEIP Proposed Rule, at 42944.

See Figure 1 in CRS Report R44480, Clean Power Plan: Legal Background and Pending Litigation in West Virginia

v. EPA, by (name redacted)

Patrick Morrisey, Attorney General, West Virginia, to Gina McCarthy, Administrator, EPA, at 1, August 1, 2016,

https://www.regulations.gov/document?D=EPA-HQ-OAR-2016-0033-0079.

Ibid., at 2.

See ibid., at 2-3 (citing 42 U.S.C. §7607(d)(7)(B) (“Only an objection to a rule ... which was raised with reasonable

specificity during the period for public comment ... may be raised during judicial review.”)).

Ibid., at 3. The letter cites (1) a 1992 comment extension by the Occupational Safety and Health Administration on a

toxic exposure limit proposal following a court decision that vacated a different final rule that was similar to OSHA’s

proposal (see Proposed Rule; Extension of Comment Period and Postponement of Hearings, 57 Federal Register

37,126 [August 18, 1992]); (2) a 2001 postponement of a comment period for a Department of the Interior

environmental review for offshore leasing until the agency could implement a court order entered in litigation over a

separate but related issue (see Notice of Postponement of Public Hearings and Extension of the Public Comment Period

for the Draft Environmental Impact Statement for Delineation Drilling Activities in Federal Waters Offshore Santa

Barbara County, California, 66 Federal Register 35,809, July 9, 2001); and (3) the State Department’s 2014

announcement that it would postpone agency review of comments on State Department approval of the Keystone XL

tar sands pipeline due to uncertainty caused by a pending and related Nebraska Supreme Court decision (see

Department of State, “Keystone XL Pipeline Project Review Process: Provision of More Time for Submission of

Agency Views,” press release, April 18, 2014, http://www.state.gov/r/pa/prs/ps/2014/04/224982.htm).

Letter from Morrisey, at 1.

Ibid., at 4.

EPA, “Clean Energy Incentive Program Design Details: Proposed Rule; Extension of Comment Period,” August 5,

2016, https://www.epa.gov/sites/production/files/201608/documents/fr_notice_ceip_comm_peri_ext_8_25_16_w_disclaimer.pdf.

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EPA’s Clean Energy Incentive Program: Background and Legal Developments

details of the CEIP component of the Clean Power Plan at this time.”41 In the CEIP proposed rule,

EPA argues that the agency has not been “enjoined by any court from continuing to work with

state partners in the development of frameworks to reduce CO2 emissions from affected [power

plants].”42 EPA points to several instances when it continued to revise provisions related to stayed

regulations.43 For example, after the D.C. Circuit issued a stay of the Cross-State Air Pollution

Rule (CSAPR)44 in 2011, EPA issued a final rule in February 2012 correcting errors and delaying

the effective date for certain provisions of the stayed CSAPR rule.45 EPA argued that the rule “is

consistent with and is unaffected by the Court’s Order staying the underlying final [CSAPR].

Finalizing this action in and of itself does not impose any requirements on regulated units or

states.”46 EPA also finalized a second rule in June 2012 that adjusted the state emission budgets

under CSAPR while the stay was in effect.47 It does not appear that EPA’s authority to finalize

these rules during the CSAPR stay was challenged.

These two CSAPR rulemakings tend to demonstrate that, as a matter of practice, a stay does not

necessarily prevent the agency from moving forward with finalizing details of the CEIP. Unlike

the two final rules issued during the CSAPR stay that revised mandatory requirements and

deadlines that would take effect once the stay was lifted, the CEIP does not have any binding

requirements for the states and regulated power plants during or after the stay unless a state

voluntarily acts to adopt the CEIP. If the CPP survives legal challenge, a state may include the

CEIP as part of its CPP implementation plan.48 The CEIP is mandatory only if it is part of the

federal plan imposed by EPA for states that do not submit an approvable implementation plan.49

There are few judicial opinions that address the types of agency activities allowed during a

judicial stay. In the CEIP proposed rule, EPA highlights a 2001 D.C. Circuit opinion that

addressed whether EPA could proceed to regulate nitrogen oxide (NOx) emission sources under

CAA Section 126 in light of the stayed NOx state implementation plan (SIP) call for revisions

under CAA Section 110.50 In Appalachian Power Co. v. EPA, the court held that EPA could

proceed to regulate the same emissions sources that would be subject to the stayed NOx SIP call

CEIP Proposed Rule, at 42942.

CEIP Proposed Rule, at 42944.

CEIP Proposed Rule, at 42945.

CSAPR, which established a cap-and-trade system to control emissions of air pollution that causes air quality

problems in downwind states, requires power plants to reduce SO2 emissions 73%, compared to 2005 levels and NOx

emissions 54%. EPA, “Fact Sheet: The Cross-State Air Pollution Rule: Reducing the Interstate Transport of Fine

Particulate Matter and Ozone,” 2011, https://www3.epa.gov/crossstaterule/pdfs/CSAPRFactsheet.pdf. For more

information regarding the litigation history of CSAPR, see CRS Report R43851, Clean Air Issues in the 114th

Congress: An Overview, by (name redacted) .

EPA, “Revisions to Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and

Ozone,” 77 Federal Register 10234, February 21, 2012.

Ibid., at 10,326.

EPA, “Revisions to Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and

Ozone,” 77 Federal Register 34830, June 12, 2012.

CEIP Proposed Rule, at 42943.

Ibid., at 42946.

EPA issued the NOx SIP call in October 1998 that required 22 states and the District of Columbia to revise their

ozone SIPs to address interstate air pollution. EPA, “Finding of Significant Contribution and Rulemaking for Certain

States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone,” 63

Federal Register 57356, October 27, 1998. The D.C. Circuit stayed the NOx SIP call on May 25, 1999. See

Appalachian Power Co. v. EPA, 249 F.3d 1032, 1045 (D.C. Cir. 2001) (citing to court-ordered stay).

Congressional Research Service

EPA’s Clean Energy Incentive Program: Background and Legal Developments

because it was acting pursuant to a separate authority under CAA Section 126.51 In contrast, EPA

relied on CAA Section 111(d) as its authority to issue both the CPP and CEIP.52

In addition to CAA Section 111(d), the agency claims that CAA Sections 102 and 103 “establish

that the EPA has the authority [to move forward with the CEIP], and illustrate why the EPA would

have good reason to continue coordinating and assisting in the development of CO2 pollution

prevention and control efforts of the states and local governments, even in light of the stay of the

Clean Power Plan.”53 EPA recognizes that these additional authorities are typically used to

“support” regulatory mandates and programs such as CAA Section 111(d) emission guidelines but

argues that these authorities can stand independently to support EPA’s actions related to the

CEIP.54

These authorities have been used primarily to maintain uniform implementation and enforcement

of CAA regulations and provide authority for EPA to engage in research and development

activities to prevent and control air pollution. Under CAA Section 102, EPA “shall encourage

cooperative activities by the States and local governments for the prevention and control of air

pollution; encourage the enactment of improved and ... uniform State and local laws relating to

the prevention and control of air pollution.”55 EPA most commonly cites this authority to approve

or disapprove implementation plans developed by states to meet new and revised National

Ambient Air Quality Standards.56 It does not appear that EPA has used Section 102 as authority to

develop and issue a standalone program to control air pollution.

CAA Section 103 appears to authorize EPA to develop and demonstrate voluntary pollution

control strategies and programs such as the CEIP. This section provides EPA with the authority to

conduct research and development activities, provide financial and technical assistance to air

pollution control agencies and other entities, and collect and disseminate data related to

improving air quality and preventing pollution.57 Of particular relevance to the CEIP, Section

103(g) requires EPA to

conduct a basic engineering research and technology program to develop, evaluate, and

demonstrate nonregulatory strategies and technologies for air pollution prevention....

Such program shall include ... [i]mprovements in nonregulatory strategies and

technologies for preventing or reducing multiple air pollutants, including ... carbon

dioxide, from stationary sources, including fossil fuel power plants.... Nothing in this

subsection shall be construed to authorize the imposition on any person of air pollution

control requirements.58

This statutory language lends support to EPA’s claim that it has the independent authority to issue

the CEIP proposed rule as a type of nonregulatory strategy that does not impose air pollution

control requirements since states have no obligation to adopt the CEIP. Previously, EPA has used

Appalachian Power Co., 249 F.3d at 1045-1048.

CEIP Proposed Rule, at 42944.

CEIP Proposed Rule, at 42947.

Ibid., at 42,944.

42 U.S.C. §7402(a).

See, for example, EPA, “Approval and Promulgation of Implementation Plans; Texas; Revisions to the New Source

Review (NSR) State Implementation Plan (SIP); General Definitions; Definition of Modification of Existing Facility,”

76 Federal Register 71260, 71266, November 17, 2011; EPA, “Approval and Promulgation of Air Quality

Implementation Plans, State of Louisiana,” 76 Federal Register 38977, 38980, July 5, 2011.

42 U.S.C. §§7403(a)-(b).

Id. §7403(g) (emphasis added).

Congressional Research Service

EPA’s Clean Energy Incentive Program: Background and Legal Developments

its Section 103 authority to develop nonregulatory programs to help reduce CO2 emissions. In

1992, EPA established the Energy Star program under the authority of Section 103(g). Energy

Star is a voluntary labeling program jointly administered by EPA and the Department of Energy

that, among other things, seeks to encourage the purchase and manufacture of energy efficient

products that could help reduce GHG emissions such as CO2 through reduced energy

consumption.59 Similar to the CEIP, manufacturers and other entities are not required to

participate in the Energy Star program.

EPA will accept comments on the CEIP proposed rule until November 2, 2016. It is possible that

EPA may continue to move forward with other CPP-related rulemakings or guidance during the

stay, such as finalizing the proposed model emission trading rules and federal plan60 (that would

be imposed if the CPP survives legal challenge in any state that does not submit an approvable

state implementation plan) before the courts have completed their judicial review.

Author Contact Information

(name redacted)

Specialist in Environmental Policy

[redacted]@crs.loc.gov

, 7-....

(name redacted)

Legislative Attorney

[redacte d]@crs.loc.gov

, 7-....

EPA and Department of Energy, “About ENERGY STAR,” https://www.energystar.gov/index.cfm?c=

about.ab_index%20. In 2002, Congress enacted the Energy Policy Act. Section 131 of the act amended Section 324 of

the Energy Policy and Conservation Act and “established at the Department of Energy and the Environmental

Protection Agency a voluntary program to identify and promote energy-efficient products and buildings in order to

reduce energy consumption, improve energy security, and reduce pollution through voluntary labeling of or other forms

of communication about products and buildings that meet the highest energy efficiency standards.” 42 U.S.C.

§6294a(a).

EPA proposed model trading rules that the states can follow in developing their own plans to implement the CPP. See

EPA, “Federal Plan Requirements for Greenhouse Gas Emissions from Electric Utility Generating Units Constructed

on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations, Proposed Rule,” 80

Federal Register 64966, October 23, 2015. EPA will base its federal plan on these model rules.

Congressional Research Service

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