Stay-ing Alive: Staying Clean Power Plan compliance may derail it permanently

There is chatter that the Clean Power Plan Final Rule will be released in early August, but also a strong effort to delay implementation until the various legal challenges are resolved. The stay could be imposed either judicially or legislatively. A bill passed the House and is currently pending in the Senate that would allow states to delay writing implementation plans until judicial review has concluded. A judicial stay could also be imposed. Given that the wheels of justice grind slowly, a stay could destroy the effectiveness of the CPP. Currently, the states' plans are due in 2016. If a stay is in place, the plans would be potentially delayed until after the next presidential election. The next president may or may not support the CPP, and could abandon it altogether. Even if executive support does not wane, the position of some states in complying with the law may. For example, in Pennsylvania, Republican Governor Tom Corbett was a leading voice opposing the CPP, and Pennsylvania passed a law requiring legislative approval of a CPP compliance plan. In 2014, however, Democratic Governor Tom Wolf was elected, and he is very supportive of the CPP, and Pennsylvania is developing its plan to comply. A change in state legislature or administrative make-up could easily go the other way. Moreover, the emissions reductions are measured at 2020 and 2030. If plans are delayed until after 2016, states will have a difficult, if not impossible, task of meeting the 30% emissions reduction target by the current dates. The rule compliance dates would have to shift, which could open up the CPP to more changes and further delays. The stay strategy is quite clever. Inertia is a powerful force. Once plans are submitted and underway, it will be much harder to derail the entire CPP framework. Economic incentives will change, and industries/jobs will grow around the new areas of investment. So, if a stay is put in place (most likely a judicial stay, because it is unlikely that Obama would sign a legislative stay), the CPP will face an uncertain future.

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