NC uses unique tactic against new EPA power rule

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Friday, December 25, 2015
The coal-fired Plant Scherer is shown in operation early Sunday, June 1, 2014, in Juliette, Ga.
The coal-fired Plant Scherer is shown in operation early Sunday, June 1, 2014, in Juliette, Ga.

RALEIGH -- Already among the two-dozen states suing to overturn new power plant emission rules, North Carolina is picking a separate fight with the Environmental Protection Agency by adopting a plan for compliance the agency is likely to reject.

State officials hope that will create a shortcut to a federal appeals court and head off any attempt by the EPA to drag out the court case while its rules get further entrenched.

North Carolina's approach is unique because it splits the difference between the handful of states that have said they won't submit any plan to the EPA, and about a dozen that are hedging their bets by developing compliance plans while they try to defeat the federal rules.

For example, West Virginia - considered a leader in the lawsuit filed in Washington against EPA in October - announced later that month that it would develop a plan to comply with the EPA.

"While I believe there are significant questions regarding the legality of the Clean Power Plan, these new rules have been put into place by the federal regulatory agency," Gov. Earl Ray Tomblin said at the time. "Until a final legal decision has been made, we cannot afford to ignore them."

Other states signed onto the lawsuit appear undecided about how to proceed.

North Carolina quickly developed a proposal that ignores two of the three strategies recommended by the EPA. The plan received initial state approval in November.

"North Carolina is way ahead of the curve in terms of putting pen to paper on a rule," said Clint Woods, executive director of the Association of Air Pollution Control Agencies.

John Evans, chief deputy secretary for the Department of Environmental Quality, explained the rationale during a November meeting before a state environmental panel. He argued that the main lawsuit by the states could be drawn out by the EPA, making the state plan North Carolina's best hope to fight it in court.

"We expect the EPA to oppose being heard, and if they are successful, then ... the only chance for judicial review that we have available to us will be North Carolina's plan," he said.

Evans explained that if North Carolina submits a rule that's rejected by the EPA, the state can then take its case to the 4th U.S. Circuit Court of Appeals.

"We have an appeal right there. That might be the first challenge in the nation to the federal power plan rule," he said.

North Carolina officials argue that improving the efficiency of power plants is the only approach out of three encouraged by the Obama administration that would be legal under state and federal law. The other approaches are increasing the use of natural gas and renewable energy.

North Carolina's director of air quality, Sheila Holman, told The Associated Press this month that state officials don't think they have the authority to force power companies to use those approaches.

According to the state's own estimates, its plan would fall short of the EPA's goals for reducing carbon emissions by 2030.

State officials say they will develop a backup plan in 2016 that expands strategies for reducing emissions in case the legal efforts fail. If no plan is submitted, the EPA can impose its own rules on the state.

Conservationists with the Sierra Club and the Natural Resources Defense Council echo Woods, whose organization works with 18 states that are mostly opposed to the EPA plan, in saying they're not aware of any taking the same approach as North Carolina.

More than a dozen of the states involved in the primary legal fight with the EPA have either said explicitly they will comply or have taken steps to develop a plan. Montana Gov. Steve Bullock, for instance, said earlier this month that the state must create a compliance plan even though he doesn't think the EPA rules are fair.

Others, including New Jersey and Oklahoma, have signaled they intend to refuse to comply.

Holman said North Carolina is already a national leader in heat rates for coal-fired plants - a key measure of efficiency - making it hard to wring out further improvements. A 2002 North Carolina law that required pollution cuts beyond federal standards contributed to efficiency improvements and the shuttering of older coal-burning units.

That means North Carolina wouldn't have as hard a time complying with the federal plan as other states, said Luis Martinez, a senior attorney with the Natural Resources Defense Council.

"North Carolina is very close as a state," he said, "which makes this quixotic campaign against the Clean Power Plan even stranger."