Clearer picture of EPA landscape ahead as resolutions expected in federal emissions plan, lawsuit

06/04/2015 06:41 PM

FRANKFORT – Kentucky will have a better handle on how the state will proceed under proposed emissions standards set by the U.S. Environmental Protection Agency this summer, state officials told the Interim Joint Committee on Natural Resources and Environment Thursday.

The EPA is expected to unveil its federal plan to comply with new greenhouse gas emissions rules in August, and a federal appeals court may rule on a lawsuit against the EPA brought by 12 attorneys general, including Democratic gubernatorial candidate Jack Conway, around the same time.

Sean Riley, chief deputy attorney general, told the legislative panel that while judges on the appeals court questioned the timing of the lawsuit because the EPA’s proposed rules aren’t final, Conway has indicated he will sue the agency again once the guidelines are finalized.

Conway and the other attorneys general filed the lawsuit “at this novel, early stage in the game so as to help states like Kentucky and the other states represented ensure that they’re not getting too far down the road in developing a state implementation plan that complies with the rule,” Riley said.

“When a final rule is promulgated there is no legal debate,” he said. “That is, there are ample grounds to challenge at that time, so if we are not successful with this unique manner in which we challenge the non-final rule, we will make an attempt to challenge the final rule when it is published in the federal register later on this summer.”

The state’s Energy and Environment Cabinet is writing such a plan, but the Union of Concerned Scientists published a report Wednesday that said Kentucky is one of 14 states already on pace to surpass their 2020 Clean Power Plan benchmarks as coal-fired plants are retired and replaced by natural gas, as WFPL’s Erica Peterson reported.

Energy and Environment Cabinet Secretary Len Peters said of the 57 coal-powered plants in Kentucky, 20 will be shuttered or transition to natural gas in compliance with unrelated federal mercury and air toxins guidelines. In all, Peters said the cabinet expects 15 coal-fired units to operate by 2040 as other plants retire with age.

What’s more, demand for electricity has stalled in Kentucky, so not all of those retiring plants will need to be replaced, Peters said.

The next governor will have a key role in implementing — or scrapping — whatever plan the state writes to comply with the new EPA standards, which is due by June 2016. Conway has indicated he would not submit a Kentucky-specific proposal until his lawsuit is resolved while Republican nominee Matt Bevin has said he would not draft a plan at all.

While the EPA’s guidelines on greenhouse gas emissions may not be popular in Kentucky, Peters said the state should be prepared with its plan of action in case the federal regulations are allowed to take effect.

“Most states are saying, and most stakeholders are saying, that a state-based approach is better than a federal plan,” Peters said. “… Whether you are challenging the plan or not, it is a backup in case you are required to put a plan in place.”

Without a Kentucky-based plan, Peters said the federal government could impose a system similar to cap-and-trade, which sets limits on emissions and allows entities that emit fewer pollutants than allowed to sell their remaining allotments.

“You can ask yourself the question, would such a scheme protect our economy? Would it maintain affordable electricity rates?” he said. “We think the answer to that question, both of those questions is probably a no.

“… Would it maximize the use of existing coal generation? We’re highly suspect of that, and it would not retain state primacy. The EPA would be in charge of that cap-and-trade process.”

Paul Bailey, senior vice president for federal affairs and policy for the American Coalition for Clean Coal Electricity, contended the proposed regulations would do little to achieve the EPA’s goal of curbing climate change.

His group, which opposes the upcoming rules, expects the EPA’s proposal to cost at least $41 billion and as much as $73 billion nationwide, he said.

Kevin Wheatley

Kevin Wheatley is a reporter for Pure Politics. He joined cn|2 in September 2014 after five years at The State Journal in Frankfort, where he covered Kentucky government and politics. You can reach him at or 502-792-1135 and follow him on Twitter at @KWheatley_cn2.


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