States seek extension of comment period for proposed rule tied to Clean Power Plan

A group of state attorneys general and other state-level officials on Aug. 1 asked the U.S. Environmental Protection Agency to extend the comment period for a proposed rule tied to the agency's Clean Power Plan following the termination of a stay that the U.S. Supreme Court has placed on the CPP. They made the request in a letter to Gina McCarthy, the EPA administrator.

At issue is a proposed rule, Clean Energy Incentive Program Design Details. In June, the EPA proposed changes and clarifications to the CPP's optional Clean Energy Incentive Program (CEIP) including, among other things, a limited expansion of the types of projects that would be eligible for the CEIP. The EPA is giving the public a chance to weigh in on the proposed changes.

The agency said that the CEIP was designed to help states and tribes meet their goals under the CPP by encouraging early investments in zero-emitting renewable energy generation and by removing barriers to investment in energy efficiency in low-income communities.

The EPA said that the proposal it unveiled in June would help guide states and tribes that choose to participate in the program when the CPP becomes effective. The CEIP design details proposed rule was published in the Federal Register on June 30.

The CPP aims to curb carbon dioxide emissions from existing power plants. The Supreme Court earlier this year issued a decision granting several requests that it stay the CPP pending judicial review of the rule, which is proceeding before the U.S. Court of Appeals for the District of Columbia Circuit.

More recently, the D.C. Circuit court on May 16 pushed back oral argument in a proceeding related to the CPP from June until late September and expanded oral argument in the case to include the active judges on the appeals court.

In their letter to McCarthy, the state AGs and officials wrote, "As the chief legal officers and officials of the states and state agencies that obtained the stay" of the CPP from the Supreme Court, "we urge you to immediately extend the comment period" on the CEIP design details proposed rule.

The state AGs and officials argued that the comment period should be extended for at least sixty days following the termination of the Clean Power Plan stay. "Of course, if the [Clean Power Plan] does not survive judicial review, the CEIP should then simply be withdrawn," the state AGs wrote.

With respect to their request to extend the comment deadline, the state AGs and officials said that extending the comment deadline is required by the stay.

They also said that "although the stay alone mandates an extension, granting an extension would also be consistent with the practice followed by other federal agencies that have promulgated rules potentially affected by pending litigation." Among other things, the states noted that the Obama Administration delayed agency review of comments on State Department approval of the Keystone XL pipeline due to uncertainty caused by a pending Nebraska Supreme Court decision.

The state AGs and officials further argued that extending the comment period through sixty days after the end of the stay would also be consistent with the purpose of notice and comment. They said that an extension "could save significant public resources by postponing any further work on the CEIP until it is clear whether the Power Plan has survived judicial review."

A number of states have put their pens down and are not expending resources on any CPP-related activities including commenting on the CEIP.

The letter was sent by state AGs and officials from the following states: Texas, West Virginia, Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin and Wyoming.

In July, the EPA extended the comment period on the proposed rule by four days from Aug. 29 to Sept. 2. "The EPA is making this change to align the public comment period with the public hearing submittal time frame," a July 21 notice in the Federal Register said.