Suzanne Murray and Phong Tran for Law360: Can States Get Through The Haze Of EPA's Clean Power Plan?


As parties begin to kick up dust over the Clean Power Plan ("CPP"), states, impacted sources and the U.S. Environmental Protection Agency might want to pause and look through the haze of litigation to see if there is a visible compromise, or, to be more accurate, a compromise in visibility.

Assuming the CPP survives the threshold Section 111 versus Section 112 challenge, this article suggests that hope may be on the horizon if states are successful in making a case that complying with the Regional Haze Rule of the Clean Air Act is, in effect, compliance with the CPP. The argument is that the best available retrofit technology ("BART") for the Regional Haze Rule is essentially the “best system of emissions reduction ... adequately demonstrated” ("BSER") under the CPP.

Before you assume the prospects are gloomy, consider that the EPA has itself proposed a similar approach in recently proposed methane regulations, where the agency stated that controls for volatile organic compounds ("VOC") could act as BSER for methane.[1] This may present an opportunity for states to streamline their State Implementation Plans ("SIPs") for the CPP and could dramatically cut costs and time associated with the implementation of both programs. Moreover, it offers sources some financial and regulatory certainty into the next two decades. Allowing states to pursue this path could also result in a win for the EPA by solidifying compliance with the CPP in the face of challenges that will likely result in vacatur or remand on at least a portion of the rule.[2]

Excerpted from Law360. to read the full article, click here (subscription required).

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