State Challenges To EPA Clean Air Rule Still A Possibility

Jun 11, 2015

Despite a federal appeals court's rejection of a lawsuit challenging a proposed Environmental Protection Agency rule that would curb carbon emissions from power plants, Arkansas may still litigate the issue as the rule is finalized this summer. The proposed rule, known as 111(d), would require that Arkansas's electric utilities reduce carbon emissions at their power plants by 44 percent by the year 2030. The national target is a 30 percent emissions reduction.

Arkansas joined 12 other states in a lawsuit challenging the EPA's draft proposal. The lawsuit was one of two filed in federal court involving 15 states and one coal-mining company. The District of Columbia Circuit Court of Appeals threw out the lawsuit on the basis that there was no precedent to challenge a federal agency rule that had not yet been finalized.

Glen Hooks of the Arkansas Sierra Club, who welcomes the proposed emissions rule, says the state should not be a party to litigation on a rule that has yet to be finalized.

“It's very unusual to challenge a rule in court before the rule has been finalized. There's a process by which you can comment on draft rules and work to make them better and more palatable to you,” says Hooks.

He says Arkansas should embrace to opportunity to transition to clean energy production.

“The clean power plan will help us move further in that direction and be a real positive for our state.”

Arkansas Attorney General Leslie Rutledge joined in the suit earlier this year. Though not immediately available for comment, a press release issued by her office shortly after the court ruling states, “I am committed to taking all available action to stop an overreaching EPA. Procedural hurdles like this instance will occur, but it should be noted that today’s ruling from the court says nothing about the legality of the EPA’s rule.”

Sandra Byrd, Vice President for Public Affairs at the Arkansas Electric Cooperatives, the state's second largest utility, says if the proposed rule remains intact, the utility may be forced to challenge it.

“We're all waiting with baited breath to see what that final rule will contain. We certainly hope that it eliminates this interim compliance deadline of 2020.”

Under the draft proposal, Arkansas's utilities would have to reduce carbon emissions 41 percent by 2020. Byrd says about half of the electricity generated by the Electric Cooperatives comes from coal-fired plants, with the rest coming from natural gas, hydroelectric and wind energy. Byrd says the rule may cause a rate increase of 20 to 40 percent for their customers. According to an April news release, the Electric Cooperatives of Arkansas provides electricity to “approximately 500,000 homes, farms and businesses in Arkansas and surrounding states.”

“There has been an awful lot of stakeholder input since last June,” says Byrd. “However, the question remains how willing the EPA is to change the rule. They have received an inordinate amount of comments, in fact I think it's an unprecedented number of comments.”

She says the Electric Cooperatives may involve itself “either directly or indirectly” in litigation if the draft proposal remains as is, noting that it may cause “disruptions of electric services all over the country, cascading outages, rolling brown-outs or black outs.”

Entergy Arkansas spokeswoman Sally Graham says her company also opposes the proposed EPA rule. Though only about 20 percent of its electricity generation comes from coal plants, while about 70 percent comes from nuclear power.

“Entergy Arkansas does oppose the proposed rule and we do believe it exceeds the agency's existing legal authority,” Graham says.

She notes one complaint of Entergy is that EPA's proposed solutions for utilities transitioning their power generation to cleaner sources does not take into account nuclear plants.

“We would not even get credit for zero-emissions nuclear generation,” Graham says.

According to its website, Entergy Arkansas provides electricity to “700,000 customers in 63 counties.”

The EPA's carbon emissions rule is expected to be finalized sometime this summer.


Sarah Whites-Koditschek contributed to this report.