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EPA 111(d) Regulation: Public Hearing
Natural Resources and Infrastructure Committee
August 4, 2015
Legislative Summit
Seattle, WA
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Public Hearing Agenda…………………………………………………………………..………. 3
Natural Resources and Infrastructure Committee Information…………………………………... 4
Speaker Bios…………………………………….…………………………………………..…… 5
NCSL Resources……………………………..…………………………………………..……... 10
States’ Reactions to Proposed EPA Greenhouse Gas Emissions Standards……....….… 10
The Legislative Role in Potential Interstate Collaboration on the Clean Power Plan….. 42
NCSL Online Resources……………………………….…………………………..…… 54
Reports of Interest on State Implementation…………………………………………… 55
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Public Hearing Agenda
2:00 – 2:40: Environmental Protection Agency
Kate Kelly, Director, Office of Air, Waste and Toxics, Environmental Protection Agency Region
10
Dennis McLerran, Administrator, Environmental Protection Agency Region 10
2:40 – 3:20: Reliability Considerations
Honorable Tony Clark, Commissioner, Federal Energy Regulatory Commission
Craig Glazer, Vice President of Federal Affairs, PJM Interconnection
Kathleen Robertson, Senior Environmental & Fuels Policy Manager, Federal Regulatory Affairs,
Exelon
3:20 – 4:00: State Implementation and Actions
David Hoppock, Senior Policy Associate, Climate and Energy Program, the Duke University
Nicholas Institute for Environmental Policy Solutions
Roger Martella, Partner, Sidley Austin LLP
Doug Scott, Vice President, Strategic Initiatives, Great Plains Institute
4:00 – 4:30: Facilitated Discussion among Legislators and Legislative Staff
4:30 – 5:00: Networking Reception: Meet the Energy Industry Experts
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NCSL Standing Committee on Natural Resources
and Infrastructure
NCSL’s Natural Resources and Infrastructure Committee is one of nine NCSL Standing
Committees. These committees are vital to NCSL’s successful representation of state interests in
Washington, D.C., and the facilitation of policy innovation among state and territorial legislatures.
Please contact any of the committee staff for details about the committee, state-federal policies
under its jurisdiction, or upcoming meetings and educational events.
Committee Officers
Co-Chair: Delegate Sally Jameson, Maryland
Co-Chair: Senator Cam Ward, Alabama
Vice Chair: Elsie Arntzen, Montana
Vice Chair: Representative Justin R. Cronin, South Dakota
Vice Chair: Representative Rick Hansen, Minnesota
Vice Chair: Senator Rita Hart, Iowa
Vice Chair: Senator Clarence K. Nishihara, Hawaii
Vice Chair: Representative Ed Orcutt, Washington
Vice Chair: Representative Dan Saddler, Alaska
Vice Chair: Senator Mike Vehle, South Dakota
Staff Co-Chair: David Beaujon, Colorado
Staff Co-Chair: Linda Hay, Alaska
Staff Vice Chair: Lowell Atchley, Kentucky
Staff Vice Chair: Jessica Harmon, Indiana
Staff Vice Chair: Jennifer Jones, Texas
Staff Vice Chair: Jace Mikels, Iowa
Staff Vice Chair: Rex Shattuck, Alaska
Staff Vice Chair: Hope Stockwell, Montana
Committee Staff
Ben Husch
Committee Director,
Natural Resources & Infrastructure
Committee
Washington, DC
Cell:609-947-0964
Melanie Condon
Policy Specialist,
Natural Resources & Infrastructure
Committee
Washington D.C.
Cell: 202-549-7688
Jocelyn Durkay
Policy Specialist,
Environment, Energy, and
Transportation Program
Denver, CO
Phone: 303-856-1494
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Speaker Bios
Panel 1
Kate Kelly, Director, Office of Air, Waste and Toxics, Environmental Protection Agency
Region 10
Kate Kelly is the Director of EPA’s Region 10 Office of Air, Waste & Toxics. In that role, she is
responsible for oversight and implementation of the hazardous and solid waste regulations and
programs, and the Clean Air Act programs in Oregon, Idaho, Alaska and Washington, working
closely with the states, tribes, local governments, the business community and the public. Kate's
office coordinates EPA's work with the Region 10 states (including environmental agencies,
utility commissions and energy offices) and other stakeholders as the states develop plans to
comply with the Clean Power Plan rules.
Before joining EPA in 2010, Kate was elected to three terms in the Idaho Senate. After holding
several leadership positions, for the last two years of her legislative service Kate was Senate
Minority Leader.
During her professional career Kate was also a manager at the Idaho Department of
Environmental Quality, and a Deputy Attorney General with the Natural Resources Division of
the Idaho Attorney General's Office.
Kate holds a B.A. from George Mason University, a M.S. from the University of Idaho College
of Mines, and a J.D. from the University of Utah College of Law.
Dennis McLerran, Administrator, Environmental Protection Agency Region 10
Administrator McLerran was appointed by President Obama to serve as the Regional
Administrator (RA) for Region 10 and sworn on February 22, 2010. He leads a staff of over 500
employees, with a responsibility for an annual budget of over $300 million.
As the RA, Dennis oversees the implementation and enforcement of the federal environmental
rules and regulations in the States of Washington, Oregon, Idaho and Alaska, including 271
tribal governments in the Pacific Northwest and Alaska.
Before moving to EPA, Dennis served as Executive Director of the Puget Sound Clean Air
Agency, and has been involved in a wide variety of state, local and federal issues and jobs in
both the public and private sectors. He is a native of Washington State, a graduate of the
University of Washington and the Seattle University School of Law. He has been a Puget Sound
Area resident for all of his adult life.
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Panel 2
Honorable Tony Clark, Commissioner, Federal Energy Regulatory Commission
Commissioner Tony Clark is serving his first term on the Commission, having been nominated
by President Obama and sworn in on June 15, 2012. A Republican, he is serving out a five-year
term that expires June 30, 2016.
Commissioner Clark formerly served as a member of the North Dakota Public Service
Commission, most recently as Chairman of the Commission. The office is a statewide elective
office, and Commissioner Clark was first elected to the PSC in 2000.
While at the North Dakota Commission, Commissioner Clark held the PSC portfolio on electric
generation and transmission and was active in state and regional efforts to develop North
Dakota’s vast energy exporting potential and to provide affordable, reliable energy to consumers.
In his 12 years at the Commission, he oversaw regulatory proceedings that permitted more than
$5.5 billion in new investment in North Dakota through expanded wind, coal and oil and gas
infrastructure. At the same time North Dakota maintained its position as one of the lowest cost
energy states in the nation, and continued its tradition of excellence in environmental protection.
In November 2010, Commissioner Clark was elected by his peers across the nation to serve a
one-year term as President of the National Association of Regulatory Utility Commissioners
(NARUC), and led association efforts on matters of importance to the regulatory community and
America’s utility consumers. He is a past Chairman of the NARUC Telecommunications
Committee and has testified multiple times before Congress on matters related to
telecommunications and energy.
Prior to his election to the PSC, Commissioner Clark was North Dakota’s Labor Commissioner,
serving in the cabinet of former Gov. Ed Schafer. He is a former state legislator, representing
Fargo in the state House of Representatives from 1994-97.
Craig Glazer, Vice President of Federal Affairs, PJM Interconnection
Craig Glazer serves as the Vice President – Federal Government Policy for PJM Interconnection.
In this capacity, Mr. Glazer coordinates all of PJM’s regulatory and legislative policies before
Congress, the Federal Energy Regulatory Commissions the United States Department of Energy
and other federal agencies. Mr. Glazer heads PJM’s Washington, D.C. office. Prior to coming to
PJM, Mr. Glazer served as Commissioner and Chairman of the Public Utilities Commission of
Ohio. As one of the longest-serving Chairs of the Ohio Commission in its history, Mr. Glazer
oversaw Ohio’s move toward deregulation of its telephone, natural gas, transportation and
electric industries.
Mr. Glazer remains extremely active on national electricity issues. Mr. Glazer served as a
member of the Board of Directors of the National Association of Regulatory Utility
Commissioners, Chairman of its International Relations Committee and a member of its
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Electricity and Energy Resources Committees. He also chaired the National Council on
Competition in the Electric Industry, an interagency collaborative which brought together FERC,
the state PUCs, the US Department of Energy, the US EPA and the National Council of State
Legislatures. He has served as Chairman of the Board of Directors of the Northeast Midwest
Institute, a bipartisan research arm of the Northeast and Midwest region’s Congressional
delegations and on the Board of Directors of the Gridwise Alliance.
PJM Interconnection operates the largest competitive wholesale electricity market in the world
and serves over 9% of the United States population. PJM ensures the reliability of the high-
voltage electric power system serving 51 million people in all or parts of Delaware, Indiana,
Illinois, Kentucky, Maryland, Michigan, New Jersey, North Carolina, Ohio, Pennsylvania,
Tennessee, Virginia, West Virginia and the District of Columbia.
Kathleen Robertson, Senior Environmental & Fuels Policy Manager, Federal Regulatory
Affairs, Exelon
Kathleen Robertson has over a decade of experience in federal energy and environmental
regulatory matters. In her current position, Kathy works with federal agencies, primarily EPA, as
well as a wide variety of environmental and energy stakeholders to influence emerging
environmental regulations affecting electricity generation and distribution, with a focus on low-
and zero-emission generation in wholesale power markets. In doing so, she reviews proposed
regulations across environmental media (e.g., air, climate, water), conducts analytical reviews,
and develops Exelon’s environmental regulatory strategy. A main focus currently is EPA’s
regulation of greenhouse gases. Kathy also provides policy support to Exelon’s Congressional
affairs and state regulatory affairs team.
Prior to joining Exelon, Kathy was a Senior Policy Analyst at M.J. Bradley & Associates and
managed the Clean Energy Group’s regulatory efforts, including successful efforts to shape
recent environmental regulations and litigation affecting the electric sector, including those for
cooling water intake structures (316(b)), the Mercury and Air Toxics Standards (MATS), Cross
State Air Pollution Rule (CSAPR), and diesel engines participating in demand response
programs. Kathy has also evaluated the environmental impacts of proposed energy projects and
served as an environmental regulator.
Kathy received a Master of Public Administration in Earth Systems Science, Policy, and
Management from the School of International and Public Affairs at Columbia University and a
Bachelor of Urban and Environmental Planning from the University of Virginia. Kathy is a
member of the Women’s Council on Energy and the Environment
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Panel 3
David Hoppock, Senior Policy Associate, Climate and Energy Program, the Duke
University Nicholas Institute for Environmental Policy Solutions
David Hoppock is a Senior Policy Associate with the Nicholas Institute for Environmental
Policy Solutions at Duke University focusing on decision making under uncertainty in the
electricity sector, economic modeling of the electricity sector, electricity policy, and electric
utility regulation.
David’s current work focuses on state compliance options under the proposed Clean Power Plan
focusing on multistate coordination, cost impacts of multistate coordination and how the Clean
Power Plan interacts with other trends in the industry. Other ongoing work includes public utility
commission decision making under uncertainty, modeling electricity generation investments
under uncertainty, and coordination of state economic and environmental regulation of the
electricity sector.
David holds a Master of Public Affairs degree from the University of Texas at Austin. He
received his B.S. in Civil and Environmental Engineering from the University of California at
Berkeley.
Roger Martella, Partner, Sidley Austin LLP
Roger Martella is a partner in the Environmental Practice Group at Sidley Austin LLP. He
rejoined Sidley Austin LLP after serving as the General Counsel of the United States
Environmental Protection Agency, concluding 10 years of litigating and handling complex
environmental and natural resource matters at the Department of Justice and EPA.
Mr. Martella’s practice focuses on three primary areas. First, Mr. Martella advises companies on
developing strategic approaches to achieve their goals in light of rapidly developing demands to
address climate change, promote sustainability, and utilize clean energy. Second, Mr. Martella
handles a broad range of environmental and natural resource litigation and mediation. Third, Mr.
Martella advises multinational companies on compliance with environmental laws in the United
States, China, the European Union, and other nations.
The 2014, The International Who’s Who of Business Lawyers recognized Mr. Martella as the
environmental lawyer of the year worldwide. The 2014 edition of Chambers includes Mr.
Martella among its top-tier Washington, DC’s environmental and national Climate Change
lawyers and Chambers Global recognizes Mr. Martella as one of the top Climate Change lawyers
globally.
Mr. Martella graduated from Vanderbilt Law School, where he was Editor in Chief of the
Vanderbilt Law Review, and Cornell University, where he studied environmental science.
Following law school, he clerked for the Hon. David M. Ebel of the Tenth Circuit Court of
Appeals.
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Doug Scott, Vice President, Strategic Initiatives, Great Plains Institute
Doug Scott joined GPI as Vice President of Strategic Initiatives in early 2015. Scott will initially
focus on existing GPI projects in which he participated as a state official, including
the Midwestern Power Sector Collaborative and the National Enhanced Oil Recovery
Initiative. He will also incorporate additional GPI work on utility regulatory reform and other
areas in the coming months.
Scott was appointed chair of the Illinois Commerce Commission in March 2011 by then Illinois
Governor Pat Quinn. During his tenure with the Commission, he served as a member of the
Energy, Resources and Environment Committee for the National Association of Regulatory
Utility Commissioners (NARUC) and of the Task Force on Environmental Regulation.
Scott also previously served as director of the Illinois Environmental Protection Agency from
2005 to 2011. During those years he chaired the Illinois Governor’s Climate Change Advisory
Committee and represented Illinois in the development of the Midwestern Governors’
Association’s energy and climate accords. Scott was a member of the Air Committee for the
Environmental Council of States (ECOS) and the US EPA Environmental Financial Advisory
Board. He was also elected and served as Mayor of Rockford, IL from 2001 to 2005, after
serving as a state representative in the Illinois General Assembly between 1995 and 2001.
A native of Rockford, Scott received his undergraduate degree with honors from the University
of Tulsa in 1982 and a Juris Doctorate with honors from Marquette University, Milwaukee, WI
in 1985.
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States’ Reactions to Proposed EPA Greenhouse Gas Emissions
Standards This document is available online at http://www.ncsl.org/default.aspx?tabid=28051.
Updated June 30, 2015
The U.S. Environmental Protection Agency (EPA) is working to craft final rules that would
regulate the greenhouse gas emissions from future and existing power plants as part of President
Obama’s Climate Action Plan. As these regulations are being developed, states are responding
through legislation and public comments to ensure the rules will meet their energy needs and
resource mixes.
On Jan. 7, 2015 Janet McCabe, acting administrator for the Office of Air at the Environmental
Protection Agency (EPA), announced that EPA will release the proposed rules affecting new
power plants and the proposed rules for existing and modified power plants together as one rule
package. Additionally, EPA announced they will begin to develop a federal “model plan” for
implementation that states can look at as they develop their own state plans. See NCSL's Info
Alert for more information.
Proposed Rules for Future Power Plants
On Sept. 20, 2013, in response to President Obama’s
request under his Climate Action Plan, the EPA released
proposed regulations for carbon dioxide emission limits
produced by future power plants known as the “Standards
of Performance for Greenhouse Gas Emissions From
New Stationary Sources: Electric Utility Generating
Units.” Along with the release of the new proposed
regulations, EPA withdrew the standards on greenhouse
gas emission limits for new power plants that the agency
originally introduced in 2012.
New coal-fired plants and new natural gas-fired turbines are treated differently under the
proposed rule, which sets emission limits at 1,100 pounds per megawatt hour for coal-fired
plants and 1,000 pounds per megawatt hour for large natural gas-fired turbines. Smaller natural
gas-fired turbines, those producing approximately 100 megawatts of electricity or less, would be
allowed 1,100 pounds per megawatt hour.
As outlined in the president’s Climate Action Plan, the regulations for new power plants should
be finalized one year from the proposed date, and would immediately go into effect under the
requirements of the Clean Air Act. The official public comment period for the proposed rules
began on Jan. 8, 2014, and was originally intended to be open for 60 days. However, the deadline
was extended for an additional 60 days and ended on May 9, 2014.
Proposed Rules for Existing Power Plants
On June 2, 2014 EPA released long-anticipated carbon dioxide emission standards for existing
power plants. The proposed Clean Power Plan, as the administration is calling it, would require
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the overall power sector to cut carbon dioxide emissions 30 percent below 2005 levels by 2030.
To do this, EPA is proposing state- specific emissions goals. The state goals are not requirements
on each specific power plant, but rather provide individual states the flexibility to meet the
reduction standards by 2030 through lowering overall carbon intensity of the power sector. EPA
will determine state-specific goals by using a basic formula of:
CO2 emissions from power plants in pounds = State-specific goal
State electricity generation from power plants in Megawatt Hours
Under the new proposed rules, states would be given the ability to tailor their
implementation plans to the states’ unique characteristics that still fit with their state-specific
goals to reduce carbon pollution. EPA has identified four “building blocks” that they feel make
up the best system of emission reductions: heat rate improvements; using less carbon intensive
affected electricity generating units; using more low- or zero-carbon generation; and using
demand-side energy efficiency. States do not have to put in place the same strategy that EPA laid
out in order to achieve compliance. The agency is also encouraging states to work together with
their regions to develop multi-state plans, if it makes sense.
States must submit their implementation plans for reducing carbon dioxide emissions by
June 2016; though extension waivers will be made available. The proposed rule will be open for
120 days for public comment.
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Regulatory Authority
The EPA is developing these emissions limits for future and existing power plants under
authority of Section 111 of the Clean Air Act. This section requires EPA to develop regulations
for categories of sources that cause or significantly contribute to air pollution that may endanger
public health or welfare. EPA has regulated more than 70 stationary source categories and
subcategories under Section 111.
The proposed rules for new power plants are being issued pursuant to Section 111(b) of the
Clean Air Act, which directs EPA to establish emission standards for new and modified sources
of air pollution. Under Section 111(b) EPA has promulgated standards for nitrogen oxides, sulfur
dioxide and particulate matter emissions for new and modified electric generating units. These
new actions represent the first time that EPA has attempted to regulate carbon dioxide emissions
under Section 111(b).
The limits being developed for existing power plants are under authority of Section 111(d) of the
Clean Air Act, which establishes a process for EPA and states to regulate emissions from already
operating facilities. Under this section, whenever EPA promulgates a standard for a new source,
states are required to develop plans for existing sources of pollutants for which there is no
national ambient air quality standard.
While there are currently emission limits on power plants for mercury and arsenic, there are no
limits on carbon dioxide. In a 2007 U.S. Supreme Court Case, Massachusetts v. EPA, the court
determined that the agency could regulate carbon dioxide emissions if it was able to conclude
that the gas endangered public health or the environment. In 2009 EPA issued this
“endangerment finding” for carbon dioxide.
Public Outreach
Though the public comment period for the rules ended on Oct. 14, 2014, (see NCSL's submitted
comments) EPA has stated that it will continue to engage with the public on the state and local
level for effective promulgation of the proposed rules regarding carbon dioxide limits for power
plants, both new and existing (expected in June 2014). EPA has 10 regional offices across the
country responsible for coordinating outreach and disseminating information to the states in that
region. In October and November 2013, EPA held 11, day-long, public listening sessions in each
of its regional office locations and at the headquarters in Washington, D.C., in which the public
was encouraged to provide feedback on the proposed rules. EPA reported that, so far, more than
10,000 people participated in the outreach process and more than 2,000 people have submitted
email comments to the agency. Additionally, a public webinar on the rules garnered more than
4,000 views. EPA is not the only federal agency asking for stakeholder's input on the rules. Most
recently, In February and March 2015, the Federal Energy Regulatory Committee (FERC) held a
series of day-long public meetings across the country to discuss possible reliability issues if the
rules are finalized. FERC held two of the meetings in Washington, D.C., and ones in Denver and
St. Louis. On May 15, 2015 FERC published a letter to EPA addressing the concepts of a
"reliability safety valve" and reliability monitoring and assistance.
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Source: U.S. Environmental Protection Agency
The State Legislative Role
When EPA released proposed regulations for carbon dioxide emissions from existing power
plants in June 2014—under section 111(d) of the Clean Air Act—a majority of state legislatures
already had adjourned. Although several states produced legislative reactions following this
release, a number of legislatures already had responded in expectation of the proposed rules
earlier in their legislative sessions (see 2014 State Action).
With all 50 state legislatures scheduled to meet in 2015, many are weighing a number of possible
responses. For example, several states, are considering legislative review of state plans, however
agencies in other states may not involve legislative involvement in plan submission.
Furthermore, state agencies and legislatures may be in disagreement regarding compliance
approaches and states may be simultaneously pursuing legal action and exploring compliance
plans.
In 2015, numerous legislatures are determining their role. Those options include approving a
final state plan, barring state implementation until legal challenges are resolved, or enacting
legislation to address compliance. Ultimately, many state legislatures and agencies’ are waiting
for the final rule, slated to be released mid-summer, and what specific impacts the regulations
will have on reliability and consumers.
2015 State Action
So far in the 2015 session, legislatures in 31 states introduced 89 bills or resolutions related to
the Clean Power Plan and power plants carbon dioxide emissions regulations. Specifically, 24
states have introduced 60 bills and seven states have enacted legislation (see chart below). An
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additional 18 states have introduced 29 nonbinding resolutions and 11 of these states have
adopted resolutions (see chart below).
In regards to executive action, Oklahoma Governor Mary Fallin issued Executive Order 2015-22
in April 2015 barring the state from submitting a 111(d) state plan and Indiana Governor Mike
Pence sent a letter to President Obama stating Indiana would not comply with EPA's regulations
as they stand.
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Legislation
This session, a number of state legislatures are looking to establish their role before the release of
final regulations. Legislation introduced in 14 states, for example, would require the legislature’s
approval of a state plan prior to its submission to EPA; legislation has been enacted in several
states. Additionally, legislation introduced in nine of these states would completely restrict a
state agency’s authority to submit a plan without legislative approval. Legislation proposed in six
states would require a state plan to be submitted to the legislature, but not require legislative
approval. Legislation in three states would require the state public utility commission to approve
a state plan before submitting it to EPA.
Another area being addressed by legislation would require an entity such as an environmental
regulator, legislature, committee or task force to develop an impact report or to study the
regulations impact on affordable power, reliability, and consumers as well as the feasibility of
compliance. Of these 19 states considering this requirement, legislation has been enacted in at
least five states. Proposed legislation in five states would prohibit state plan development until
legal challenges to the regulations are resolved, while legislation in one state would encourage a
legislative committee to employ legal counsel to litigate EPA. Legislation in six states, including
a bill enacted in Arkansas, proposes creating a reliability safety valve against early power plant
retirements. Proposed legislation in four states seeks to cap rate increases. Introduced legislation
in an additional four states would require state public utility commission and FERC certification
of state plans to ensure reliability. Legislation in several states would require public hearings on
proposed state plans and a bill introduced in one state would bar the state from complying with
implementation. Introduced legislation in two states would establish market-based compliance
options, including cap-and-invest and carbon credit systems.
Table 1 below displays summaries of enacted legislation. Table 2 displays summaries of
introduced resolutions.
Resolutions
Resolutions in 10 states encourage a dismissal of the final regulations or a full exemption from
regulations while resolutions in four states request the EPA significantly modify regulations.
Four states’ resolutions request U.S. congressional intervention and one state resolution would
refuse to implement any regulations. Resolutions in five states—including adopted resolutions in
Alabama, Georgia, Mississippi and Missouri—supports their state agencies’ comments
submitted to EPA on the rules.
Table 3 below displays summaries of adopted resolutions. Table 4 displays summaries of
introduced resolutions.
Use the search function below to locate bills or resolution by state or terms (“safety valve” or
“legislative approval”).
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TABLE 1: Enacted State Bills as of June 30, 2015
STATE BILL SUMMARY
Arizona
Senate Bill
1007
(Enacted)
Establishes the joint legislative review committee on state
implementation plans for carbon dioxide emissions from
existing power plants. Requires legislative approval of a state
plan before its submission to EPA, with certain exceptions.
Establishes factors to be considered in reviewing the state plan.
Tasks state entities with the role of developing or consulting on
a state plan.
Arkansas Senate Bill
183 (Enacted)
States the submission of a state plan is the preferred method of
compliance with federal emission guidelines. Before initiating
any development of a state plan, the Arkansas Department of
Environmental Quality is required to develop several impact
reports. Among other reporting, requires the Department of
Environmental Quality to work in conjunction with the Public
Service Commission to prepare a report on the regulation’s
impacts to affordability, financial impacts, reliability and other
factors. Requires the department to develop a report on
electricity consumer impacts in conjunction with the Economic
Development Commission. Requires legislative approval by the
legislative council and the governor of a state plan before its
submission to EPA, with certain exceptions. Establishes a rate
and reliability safety valve for customer classes, including
energy-intensive-trade-exposed industries.
Kansas
House Bill
2233
(Enacted)
As Introduced: Companion bill of Senate Bill 151.
As Amended: Authorizes the secretary of Health and
Environment to develop and submit a state plan to EPA. Before
developing a state plan, the secretary must hold a joint hearing
with the state Corporation Commission and conduct a joint
investigation. Requires legislative review and input of a state
plan.
Nebraska
Legislative
Bill 469
(Enacted),
Legislative
Appropriation
469 (Enacted)
Requires the Department of Environmental Quality to submit an
impact report and hold a public hearing on the development of a
state plan. Requires the department to submit the state plan and
the impact report to the Legislature.
Legislative Appropriation 469 provides funds to implement
Legislative Bill 469.
North
Dakota
Senate Bill
2372
(Enacted)
Authorizes legislative management to conduct a study during
the 2015-2016 interim on the impacts and costs of EPA
regulations on carbon dioxide emissions for new and existing
electric generation units. Establishes required components in
the study, including reliability, ratepayer impact, feasibility and
17
TABLE 1: Enacted State Bills as of June 30, 2015
STATE BILL SUMMARY
other factors. Requires legislative management to present the
study and any recommendations to the legislature.
Tennessee
Senate Bill
1325
(Enacted)
Identical to House Bill 868 as introduced.
As amended: Requires the Department of Environment and
Conservation provide notice of the development of a state plan
and solicit comments. Requires the department to develop an
impact report, with modified provisions. Requires the
department to submit a state plan and impact report to the
legislature and requires legislative approval of a state plan,
provides for exceptions.
West
Virginia
House Bill
2004
(Enacted)
Identical to Senate Bill 4 as introduced.
As amended: Requires the Department of Environmental
Protection to submit a report to the legislature examining the
feasibility of EPA regulations. If the department determines a
state plan is feasible, the department must submit the state plan
to the legislature and publish the report and any proposed plan
on its website. Requires legislative approval of a state plan
before submission to EPA.
Source: National Conference of State Legislatures, 2015.
TABLE 2: Introduced State Bills as of June 30, 2015
STATE BILL SUMMARY
Alaska
House Bill
138
(Pending-
Carryover)
Establishes that the Department of Environmental
Conservation is to develop a state plan. Requires the
department to develop an impact report. Requires the
department to submit a copy of the proposed state plan and the
impact report to the legislature. Requires legislative approval
of a state plan.
Senate Bill
57 (Pending-
Carryover)
Requires the Department of Environmental Conservation to
seek a waiver or exemption from EPA’s regulations, before
developing a state plan. Requires the department to determine
certain factors before submitting a state plan. Requires the
department to develop an impact report. Requires the
department to submit a state plan and the impact report to the
legislature.
Arizona House Bill
2657 (Failed)
Before initiating any development of a state plan, the Arizona
Department of Environmental Quality is required to complete
several impact reports. Requires the department to develop a
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TABLE 2: Introduced State Bills as of June 30, 2015
STATE BILL SUMMARY
report on the regulation’s impacts to affordability, financial
impacts, reliability and other factors. Requires the department
to develop a report on electricity consumer impacts, among
other reports.
Arkansas House Bill
1962 (Failed)
Establishes that the sole authority to enforce a state plan under
Section 111(d) of the Clean Air Act rests with the Arkansas
Department of Environmental Quality.
Colorado
House Bill
1210 (Failed)
Modifies an existing requirement for the annual legislative
review of new administrative rules that must be submitted to
EPA. Establishes a requirement for approval of new state
rules.
Senate Bill
92 (Failed)
Requires Public Utility Commission approval of a state plan
before its submission to EPA. Requires legislative approval by
a two-third majority vote before a plan is submitted to EPA.
Requires an impact report by the commission and the
Department of Public Health and the Environment
summarizing the plan’s effect on rates, reliability and the
economy.
Senate Bill
258 (Failed)
Requires Public Utility Commission approval of a state plan
before its submission to EPA. Requires an impact report by
the Commission and the Department of Public Health and the
Environment summarizing the plan’s effect on rates,
reliability, the economy and other factors. Requires legislative
review of the state plan and impact report. Requires legislative
approval before a plan is submitted to EPA.
Florida
House Bill
849 (Failed)
Requires the Department of Environmental Protection to
submit a state plan for legislative approval before its
submission to EPA, with certain exceptions. Requires
legislative ratification of other legally binding action of the
executive branch of the state, including executive orders,
policies or policy statements, guidance documents, and
rulemaking related to section 111(d) of the Clean Air Act.
Senate Bill
1076 (Failed)
Requires the Department of Environmental Protection to
submit a state plan for legislative approval before its
submission to EPA, with certain exceptions.
Illinois
House Bill
2607
(Pending);
Senate Bill
1485
(Pending)
Directs the Planning and Procurement Bureau to establish a
long-term renewable resources procurement plan. Includes
provisions to encourage increased use of energy efficiency.
Authorizes the Illinois Environmental Protection Agency to
develop a market-based or cap and invest program upon the
release of a final federal rule.
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TABLE 2: Introduced State Bills as of June 30, 2015
STATE BILL SUMMARY
House Bill
3293
(Pending)
Establishes a low carbon portfolio standard for all utilities’
retail customers and a low carbon energy credits system.
Requires 70 percent of each electric utility’s annual retail sales
of electricity to be from low carbon energy sources beginning
in 2016.
Illinois
House 3341
(To
Governor)
Clarifies that a “stationary source” does not include a building,
structure, facility or installation causing emissions resulting
directly from internal combustion engines for transportation
purposes or from a non-road engine or a non-road vehicle, as it
relates to the federal Clean Air Act.
Indiana
House Bill
1290 (Failed)
Nullifies all regulations imposed in Indiana by EPA beginning
on July 1, 2015. Requires all environmental laws and funding
to be determined by the passage of an act by the General
Assembly.
Senate Bill
569 (Failed)
Bars the Department of Environmental Management from
preparing or implementing a state plan until all legal
challenges are fully resolved. Requires the department to
submit a copy of any state plan to the relevant House and
Senate committees of the legislature. The committees are
required to submit a report on the impact to affordability and
reliability to the Legislative Council, the governor and the
state budget committee. Requires certification from the Utility
Regulatory Commission and the Federal Energy Regulatory
Commission that a state plan meets reliability standards.
Establishes a reliability safety valve and caps rate increases.
Kansas
House Bill
2414
(Pending-
Carryover)
Authorizes the secretary of Health and Environment to
develop a state plan and a regulatory impact report. Requires
the secretary to submit the state plan and impact report to the
governor, the Senate president and House speaker before
submitting the plan to EPA.
Senate Bill
151
(Pending-
Carryover)
As Introduced: Companion bill of House Bill 2233.
As Amended: Authorizes the secretary of Health and
Environment to develop and submit a state plan to EPA.
Requires statutory authority for the state to participate in an
organized carbon trading market. Before developing a state
plan, the secretary must hold a joint hearing with the state
Corporation Commission and conduct a joint investigation.
Establishes a Clean Power Plan Implementation Study
Committee. Requires the committee’s approval of a state plan.
Senate Bill
170 (Failed)
Prohibits the state Corporation Commission and the secretary
of Health and the Environment from developing a state plan
until all legal challenges have been resolved. Requires
20
TABLE 2: Introduced State Bills as of June 30, 2015
STATE BILL SUMMARY
legislative approval of a state plan. Requires the secretary to
submit the state plan to the Corporation Commission and the
Federal Energy Regulatory Commission to certify that a plan
meets reliability standards. Establishes a reliability safety
valve and caps rate increases.
Minnesota
House File
333
(Pending-
Carryover);
Senate File
231
(Pending-
Carryover)
Requires the commissioner of the Pollution Control Agency to
receive legislative approval of a state plan before submission
to EPA.
House File
639
(Pending-
Carryover);
Senate File
725
(Pending-
Carryover)
Amends the prohibition on new sources of fossil-fuel
generated electricity to include only those sources constructed
in Minnesota, not imports, and establishes an exception for
reliability.
Missouri
House Bill
215 (Failed)
Prohibits the enforcement of any federal regulation by any
state department or agency before receiving legislative
approval. Establishes that any department or agency is not
required to enforce any regulation promulgated by any federal
agency.
House Bill
835 (Failed)
Requires the department to submit any state plan for
submission, to prepare a regulatory impact report and submit
both items to the governor, the president pro tem of the Senate
and the speaker of the House of Representatives before
submitting the plan to EPA. Requires legislative approval of a
state plan before its submission to EPA.
Senate Bill
142 (To
Governor)
Requires the department to submit any state plan for
submission, to prepare a regulatory impact report and submit
both items to the governor, the Joint Committee on
Government Accountability, the president pro tem of the
Senate and the speaker of the House of Representatives before
submitting the plan to EPA. Requires public hearings and a
stakeholder meeting.
Mississippi House Bill
829 (Failed)
Requires the Mississippi Department of Environmental
Quality, in developing any state plan, to prepare an impact
report on affordability, financial impacts, reliability and other
21
TABLE 2: Introduced State Bills as of June 30, 2015
STATE BILL SUMMARY
factors. Requires the department to provide the state plan and
report to the legislature for recommendations.
House Bill
875 (Failed)
Requires the Mississippi Department of Environmental
Quality, in developing any state plan, to prepare an impact
report on affordability, financial impacts, reliability and other
factors. Requires the department to provide the report to the
legislature and the public through the department’s website.
Requires the department to receive legislative and public
comments.
Senate Bill
2571 (Failed)
Requires the Mississippi Department of Environmental
Quality, in developing any state plan, to prepare an impact
report on affordability, financial impacts, reliability and other
factors. Requires the department to provide the report to the
legislature and the public through the department’s website.
Requires the department to receive legislative and public
comments.
Montana Senate Bill
236 (Failed)
Requires the Department of Environmental Quality to solicit
comments from the general public and the Public Service
Commission. Requires the department to consider specific
factors in developing a state plan. Requires legislative
approval of a state plan before its submission to EPA, with
certain exceptions. Requires notification of tribal
governments.
Nevada Senate Bill
438 (Failed)
Requires the Department of Conservation and Natural
Resources to prepare an impact report in conjunction with a
state plan and to distribute the report to various state entities
and electric utilities. Requires the department to hold a
hearing. Requires the department to submit the state plan to
the legislature. Requires legislative approval of a state plan
before its submission to EPA.
New
Mexico
Senate Bill
630 (Failed)
Establishes a carbon credit oversight board and defines carbon
credit rights. Appropriates funds for program development.
North
Carolina
House Bill
571
(Pending)
Requires the Department of Environment and Natural
Resources to develop a state plan in consultation with the
Environmental Management Commission and the Utilities
Commission. Establishes factors that must be considered in
the development of a state plan. Establishes a State Plan
Advisory Board. Requires the department to hold at least three
public hearings. Requires the department to complete interim
and final reports.
Oklahoma Senate Bill
676 (Vetoed)
Requires the Department of Environmental Quality to submit
the state plan to the attorney general. Establishes provisions
22
TABLE 2: Introduced State Bills as of June 30, 2015
STATE BILL SUMMARY
for the attorney general’s recommendations of the state plan to
the governor and the legislature. Authorizes the legislature to
approve or disapprove of a state plan.
Oklahoma Governor Mary Fallin has issued Executive Order
2015-22, barring the state from submitting a 111(d) state plan.
South
Carolina
House Bill
3707
(Pending)
Prevents a state agency from preparing a state plan before all
legal challenges have been resolved. Authorizes the South
Carolina Department of Health and Environmental Control to
examine the implications of preparing and implementing the
regulations, but may take no further action. Establishes a
reliability safety valve that the Public Service Commission
may not approve a proposal or order that retires a unit before
its engineering lifetime if the unit is necessary to maintain grid
reliability. Directs the Public Service Commission to cap rate
increases associated with greenhouse gas regulations at one
and one-half percent.
South
Dakota
House Bill
1203 (Failed)
Requires the Department of Water and Natural Resources, if it
elects to submit a state plan, to complete an impact report.
Requires the department to submit the state plan and the
impact report to the Executive Board of the Legislative
Research Council.
Tennessee
House Bill
640 (Failed)
Requires the Department of Environment and Conservation to
provide notice of the development of a state plan and solicit
comments. Requires the department to develop an impact
report. Requires the department to submit a state plan and
impact report to the legislature and requires legislative
approval of a state plan, with certain exceptions.
House Bill
868
(Pending-
Carryover)
Identical to introduced Senate Bill 1325.
Requires the Department of Environment and Conservation
provide notice of the development of a state plan and solicit
comments. Requires the department to develop an impact
report. Requires the department to submit a state plan and
impact report to the legislature and requires legislative
approval of a state plan, with certain exceptions.
Texas House Bill
190 (Failed)
Establishes provisions for the Texas Commission on
Environmental Quality in adopting new environmental
regulations. Requires the commission to conduct a regulatory
analysis of the costs and environmental effects and benefits
expected to result from implementation of and compliance
with the rule.
23
TABLE 2: Introduced State Bills as of June 30, 2015
STATE BILL SUMMARY
House Bill
2080 (Failed)
Establishes components that the Natural Resource
Conservation Commission must include when developing a
state plan, including economic impact. Requires the plan to be
reviewed and subject to public comments every five years.
Requires the commission to submit a state plan and plan
updates to the legislature. Requires collaboration among state
agencies. Appropriates funding for implementation.
House Bill
3069
(Failed);
Senate Bill
1954 (Failed)
Establishes that the Commission on Environmental Quality is
the primary authority in developing a state plan. Authorizes
the Commission and the utility commission to develop a state
plan. Requires the Commission and the utility commission to
draft a memorandum of understanding to clarify respective
duties, responsibilities and functions that are not expressly
assigned to any entity.
House Bill
3450
(Failed);
Senate Bill
1404 (Failed)
Establishes notification provisions by the Commission on
Environmental Quality to the governor, the lieutenant
governor and the speaker of the House regarding EPA
regulations, permits, state emissions plans and other actions.
Defends the Texas Emissions Reduction Plan. Requires to
commission to develop an impact report on costs and benefits
before developing any state plan.
Senate Bill
1432 (Failed)
Prohibits a state agency from implementing EPA regulations
or developing a state plan. Prohibits a state employee from
participating on a board, committee, entity or a study of a
national organization that recommends provisions to
implement a federal greenhouse gas emissions regulatory
program.
Senate Bill
1761 (Failed)
Prohibits state agencies from developing a state plan until all
legal challenges have been resolved. Requires legislative
approval before submitting a plan to EPA. Requires the
Commission on Environmental Quality to develop a customer
impact report and to submit the report to the legislature.
Requires the Public Utility Commission and the Federal
Energy Regulatory Commission to certify the plan meets
reliability standards. Requires the commission and the Public
Utility Commission to develop a memorandum of
understanding regarding duties, responsibilities and functions.
Establishes a reliability safety valve and provisions for retiring
generating units and rate increases.
Virginia House Bill
2291 (Failed)
Requires the Department of Environmental Quality to develop
an impact report. Establishes factors the department must
consider in developing a state plan. Requires the department to
submit the report and a state plan to the legislature. Requires
24
TABLE 2: Introduced State Bills as of June 30, 2015
STATE BILL SUMMARY
legislative approval of a state plan before its submission to
EPA.
Senate Bill
740 (Failed)
Establishes factors the Department of Environmental Quality
must consider in developing a state plan. Requires legislative
approval of a state plan before its submission to EPA.
Establishes procedure for the department to revise a state plan
for resubmission to the legislature.
Senate Bill
1202 (Failed)
Prohibits any state agency from preparing or submitting a state
plan to EPA unless the Corporation Commission makes
certain findings in the final EPA regulations related to state
requirements, nuclear generation, facilities currently in
construction, interim targets, a safety valve, facility retirement,
glide paths and other criteria.
Senate Bill
1343 (Failed)
Authorizes the Joint Rules Committee of the legislature to
employ legal counsel to represent the state in litigation
challenging EPA regulations, if the Office of the Attorney
General has not instituted and is not diligently pursuing legal
action on behalf of the state.
Senate Bill
1365 (Failed)
Requires the Department of Environmental Quality to develop
an impact report. Establishes factors the department must
consider in developing a state plan. Requires the department to
submit the report and a state plan to the legislature. Requires
legislative approval of a state plan before its submission to
EPA.
Senate Bill
1442 (Failed)
Prohibits the Department of Environmental Quality from
expending funds to develop or implement a state plan until all
legal challenges have been resolved. Prohibits the department
from expending funds to implement a plan until that plan is
approved by the Air Pollution Control Board. Requires
legislative approval of a state plan and legislative approval of
a state impact report compiled by the Corporation
Commission. Requires the commission to certify the plan
meets Federal Energy Regulatory Commission reliability
standards. Establishes a reliability safety valve and provisions
on unit retirement.
West
Virginia
Senate Bill 4
(Failed)
Identical to House Bill 2004 as introduced.
As amended: Requires the Department of Environmental
Protection to submit a report to the legislature examining the
feasibility of EPA regulations. If the department determines a
state plan is feasible, the department must submit the state
plan to the legislature and publish the report and any proposed
plan on its website. Requires unit-specific standards for
25
TABLE 2: Introduced State Bills as of June 30, 2015
STATE BILL SUMMARY
generating units and authorizes flexibility in standards.
Requires legislative approval of a state plan before submission
to EPA.
Source: National Conference of State Legislatures, 2015.
TABLE 3: Adopted State Resolutions as of June 30, 2015
STATE RESOLUTION SUMMARY
Alabama
House Joint
Resolution 205
(Adopted)
Requests EPA to withdraw and reconsider the proposed Clean
Power Plan. Supports the comments on EPA's Clean Power
Plan submitted by the Alabama Department of Environmental
Management, the Public Service Commission and the
Attorney General. Urges that the rule should include
emissions reductions since 2005, including existing renewable
hydroelectricity and should not penalize Alabama for having
existing nuclear generation. Urges that the rule should have
non-binding requirements instead of required reductions.
Urges that if EPA does not withdraw the Clean Power Plan,
the members of this body further urge EPA to allow
additional time for states to develop state plans and to comply
with the emission guidelines, requiring compliance no earlier
than 2030. Urges a delay in federal implementation until all
legal challenges are resolved.
Arizona
Senate
Concurrent
Memorial 1013
(Adopted)
Urges the U.S. Congress to oppose the implementation of
certain emissions reduction rules for new and existing electric
generating units.
Georgia
House
Resolution 613
(Adopted)
Encourages EPA to withdraw the proposed Clean Power Plan
and supports the comments submitted to EPA by the Georgia
Environmental Protection Division, the Georgia Public
Service Commission and the Attorney General of Georgia.
Encourages EPA to give states credits for emissions
reductions beginning in 2005. Encourages EPA to establish
nonbinding goals or extended timelines for state reductions, if
a final rule is submitted. Encourages Congress and the
president to enact legislation delaying implementation of the
final Clean Power Plan until all legal challenges have been
resolved.
Senate
Resolution 449
(Adopted)
Encourages EPA to withdraw the proposed Clean Power Plan.
Supports the comments submitted to EPA by the Georgia
Environmental Protection Division, the Georgia Public
26
TABLE 3: Adopted State Resolutions as of June 30, 2015
STATE RESOLUTION SUMMARY
Service Commission and the attorney general of Georgia.
Encourages EPA to give states credits for emissions
reductions beginning in 2005. Encourages EPA to establish
nonbinding goals or extended timelines for state reductions, if
a final rule is submitted. Encourages Congress and the
president to enact legislation delaying implementation of the
final Clean Power Plan until legal challenges are resolved.
Kentucky
House
Concurrent
Resolution 168
(Adopted)
Establishes a Federal Environmental Regulation Impact
Assessment Task Force to study the potential effect of federal
environmental regulations on the affordability and reliability
of electricity generation in the state.
Louisiana
House
Concurrent
Resolution 29
(Adopted)
Urges and requests that EPA withdraw the proposed
guidelines for reducing carbon dioxide emissions from fossil
fuel-fired power plants. Urges and requests that, in the event
EPA adopts the proposed guidelines, the governor and the
attorney general use every means at their disposal, including
taking legal action, to prevent the guidelines from being
implemented.
Mississippi
Senate
Concurrent
Resolution 637
(Adopted)
Encourages EPA and the president to withdraw the proposed
Clean Power Plan and supports the comments submitted to
EPA by the Mississippi Department of Environmental
Quality, the Public Service Commission and the Governor.
Encourages EPA to give states credits for emissions
reductions beginning in 2005. Encourages EPA to establish
nonbinding goals or extended timelines for state reductions, if
a final rule is submitted. Encourages Congress and the
president to enact legislation delaying implementation of the
final Clean Power Plan until all legal challenges have been
resolved.
Missouri
House
Resolution 425
(Adopted)
Adopts the House majority floor leader’s filing with EPA as
the state’s official position, urging EPA to withdraw its Clean
Power Plan proposed rule.
North
Dakota
House
Concurrent
Resolution 3024
(Adopted)
Urges the federal government to refrain from enacting
regulations that threaten the reliability and affordability of
electric power in the Northern Great Plains, including
requirements for coal-fired power plants that are not
achievable with current technology. Supports the efforts of the
lignite industry to challenge federal regulations and develop
new technology.
South
Dakota
House
Concurrent
Resolution 1007
(Adopted)
Declares that the Legislature opposes the EPA's guidelines for
reducing carbon dioxide emissions from existing fossil fuel-
fired power plants and urges the EPA to withdraw the
guidelines. Declares that the EPA's proposed guidelines
27
TABLE 3: Adopted State Resolutions as of June 30, 2015
STATE RESOLUTION SUMMARY
exceed the EPA's legal authority under section 111(d) of the
federal Clean Air Act. Urges the governor and the attorney
general to use every means at their disposal to prevent the
EPA's guidelines from being implemented.
Utah
House
Concurrent
Resolution 8
(Adopted)
Emphasizes improved soil health as the primary means of
removing atmospheric carbon dioxide. Calls on the president
of the United States to direct federal agencies that implement
management practices that increase soil carbon sequestration
to develop comprehensive plans that achieve the maximum
amount of carbon sequestration possible. Urges the leader of
each legislative house in each of the other states to implement
improved soil health as the primary means of removing
atmospheric carbon dioxide to the maximum extent possible.
Urges all state agencies with authority to manage lands to
increase soil carbon sequestration.
Virginia
Senate Joint
Resolution 273
(Adopted)
Requests the Department of Environmental Quality to study
the projected health benefits of the proposed federal Clean
Power Plan in comparison with the projected health benefits
of existing regulations. Requires the department to submit a
report to the governor and the legislature by November 2015.
Source: National Conference of State Legislatures, 2015.
TABLE 4: Introduced State Resolutions as of June 30, 2015
STATE RESOLUTION SUMMARY
Alabama
House Joint
Resolution 43
(Failed)
Urges EPA to recognize the authority of states to regulate
existing fossil-fueled power plants.
Alaska
House Joint
Resolution 8
(Pending-
Carryover)
Urges the federal government to exempt from the Clean
Power Plan and empower the state to protect the state's access
to affordable and reliable electrical generation.
Senate Joint
Resolution 4
(Pending-
Carryover)
Urges the federal government to empower the state
government to regulate its own energy production and use to
protect access to affordable and reliable electrical generation
for state residents.
Florida
House
Memorial 949
(Failed); Senate
Urges U.S. Congress to direct EPA to revise its proposed
regulations that address carbon dioxide emissions from
existing fossil fuel-fired electric generating units by extending
the deadline for state plan submission to EPA, extending the
28
TABLE 4: Introduced State Resolutions as of June 30, 2015
STATE RESOLUTION SUMMARY
Memorial 1228
(Failed)
interim and final goals and prohibit the retirement of units
before their engineering lifetime.
Michigan
Senate
Concurrent
Resolution 13
(Pending)
Memorializes the President, Congress and EPA to abandon
the promulgation of currently proposed carbon emission
reduction regulations that would lead to an unnecessary and
drastic increase in the cost of electricity for the people of the
state of Michigan.
Senate
Resolution 53
(Pending)
Memorializes the President, Congress and EPA to abandon
the promulgation of currently proposed carbon emission
reduction regulations that would lead to an unnecessary and
drastic increase in the cost of electricity for the people of the
state of Michigan.
Missouri
House
Concurrent
Resolution 32
(Failed)
Adopts the House majority floor leader’s filing with EPA as
the state’s official position, urging EPA to withdraw its Clean
Power Plan proposed rule.
House
Concurrent
Resolution 50
(Failed)
Urges the attorney general exhaust all available options to
challenge EPA’s proposed regulations. Urges EPA to
withdraw its proposed regulations.
Montana
Senate Joint
Resolution 17
(Failed)
Establishes an interim committee tasked with conducting a
study exploring the economic and ecological impacts of
phasing out the burning of coal at generation facilities,
phasing out the mining of coal and increasing the use of
alternative energy resources in Montana.
Pennsylvania
House
Resolution 259
(Pending)
Establishes a joint select committee on the implementation of
EPA regulations. Establishes requirements for the committee,
including developing an impact report that will be submitted
to the legislature and the Department of Environmental
Protection.
South
Carolina
House
(Concurrent
Resolution)
3570 (Pending)
Memorialize the Department of Health and Environmental
Control and the South Carolina Public Service Commission to
adopt policies that preserve environmental quality under the
Clean Air Act while refusing to implement a Clean Power
State Implementation Plan.
Texas
Senate
Concurrent
Resolution 27
(Failed)
Refuses to recognize EPA regulations in the absence of
congressional legislation. Urges congressional efforts to
withdraw regulations. Directs state agencies to resist the
implementation of EPA regulations. Directs state agencies
against preparing a state plan before all legal challenges have
been resolved but supports state agencies in exploring the
impact of these regulations.
29
TABLE 4: Introduced State Resolutions as of June 30, 2015
STATE RESOLUTION SUMMARY
Utah
House Joint
Resolution 19
(Failed)
Supports the state of Utah's response to Environmental
Protection Agency's Clean Power Plan that requests EPA to
withdraw its proposal.
Virginia
House Joint
Resolution 608
(Failed)
Recognizes the state’s opposition to proposed EPA emissions
guidelines for the regulation of carbon dioxide emissions from
existing power plants under Section 111(d) of the federal
Clean Air Act.
Senate Joint
Resolution 294
(Failed)
Urges the withdraw of EPA’s proposed regulations for the
regulation of carbon dioxide emissions from existing power
plants under Section 111(d) of the federal Clean Air Act.
Requests the attorney general of Virginia to pursue all
available legal actions in federal and state courts to challenge
any final regulations by EPA.
Senate Joint
Resolution 308
(Failed)
Requests the Joint Rules Committee of the legislature to
employ legal counsel to represent the state in litigation
challenging EPA regulations, if the Office of the Attorney
General has not instituted and is not diligently pursuing legal
action on behalf of the state.
Source: National Conference of State Legislatures, 2015.
Additional Legislation of Interest
A number of states have introduced bills or resolutions that address greenhouse gas emissions
without naming the Clean Power Plan as a motivation. These bills and resolutions—which are
categorized below—may seek to reduce greenhouse gases, to establish or join a carbon market,
conduct an emissions analysis, study grid reliability, support coal-fired generation or expand
renewable energy and energy efficiency programs in a state. For more information, please
contact Jocelyn Durkay or visit our Energy Database.
Greenhouse Gas Emission Requirements: A number of states already have a detailed
emissions reduction plan and several are looking to modify those requirements.
Emissions reductions standards have been established as state goals or through market-
based mechanisms such as a regional carbon market or a cap-and-trade program. In the
2015 session, legislation has been introduced in at least California, Massachusetts,
Minnesota, New York and Oregon.
Multiple states have carbon dioxide emissions programs, including California and
nine northeastern states in the Regional Greenhouse Gas Initiative (RGGI). Additional
states are considering taxes or fees for fossil fuels, carbon reduction bonds, carbon credits
programs, cap-and-trade or cap-and-dividend programs, or other financial incentives for
carbon reductions. Legislation has been introduced in at least Hawaii, Illinois (see Table
2 above), New Mexico (see Table 2 above), Oregon, Rhode Island, Vermont and
Washington. Legislation in Colorado requires the inclusion of the social cost of carbon in
legislative fiscal notes while a Vermont bill would authorize the use of carbon offsets in
30
regional carbon trading. Two states—New Jersey and Virginia—considered legislation
this session to join RGGI. New Jersey was a founding member of RGGI but the
governor, without the approval of the legislature, left the initiative in 2011. In the 2015
New Jersey session, one resolution to rejoin RGGI was adopted.
Studies: Commissioning studies can allow legislatures to gather information to aid with
future policy decisions. Legislatures in a number of states are considering studies in
2015: legislation in Illinois would examine previous and future emissions reductions in
the state. Massachusetts legislation would examine the lifecycle emissions of all fuels and
establish a task force to study actions needed to further reduce emissions. Oregon
legislation would examine the return on investment for carbon emission activities.
Legislation in Washington would explore the costs and benefits of accelerated retirement
of coal-fired generation units.
Rate Considerations for Industry: Affordable and reliable generation are principal
concerns for both states and industry. Legislatures in at least two states are considering
bills that would examine the impact of electricity rates on energy-intensive, trade-
exposed industries (EITEs) such as mining, manufacturing and forestry. Legislation has
been enacted in Arkansas (see Table 1 above) and Virginia. Bills have been introduced in
Minnesota (including Table 2 above) and Washington. At least three states have included
specific provisions for EITEs in electricity rates.
Supporting Fossil Fuels: In 2015, legislatures in Kentucky and Montana have adopted
resolutions supporting coal, coal-fired power plants and carbon capture and sequestration
technologies. Legislation introduced in Montana would support coal-fired power plants
while legislation enacted in Montana and Wyoming encourages enhanced oil and gas
recovery.
Expanding Low Emission Sources: Renewable energy, nuclear energy, energy
efficiency and energy conservation are low or zero emission energy sources. In the 2015
session, legislatures in at least Connecticut, Minnesota, New York, North Carolina,
Oregon, Virginia and Washington are exploring increased use of these technologies and
energy diversification to reduce carbon dioxide emissions. Additionally, a number of
states are exploring the expansion of renewable energy requirements or net metering
policies to promote and accommodate increasing quantities of renewable energy.
*Note: Proposed legislation is not an indicator of the likelihood of consideration, passage or
failure.
2014 State Action
In 2014, states took varied approaches to EPA’s proposed and pending regulations for carbon
dioxide emissions from power plants. Twenty-three states introduced 53 bills and resolutions
concerning these regulations.
While state legislative activity varied from support to opposition, the common thread was an
emphasis on the state’s authority to develop and implement regulations that meet their energy
needs, resource mix and policies. Thirty bills and resolutions explicitly mentioned the primacy of
states to develop performance standards and of those, 22 cited the primacy of states to implement
the Clean Air Act. Twenty-seven resolutions and three bills expressed support for coal as an
energy resource, while 28 resolutions and two bills emphasized the benefits to energy security
31
and reliability that result from a diverse energy portfolio. Five resolutions called for
Congressional oversight of EPA with regard to the agency’s regulatory authority of power plant
carbon dioxide emissions.
There were also U.S. congressional responses to EPA’s proposed regulations: U.S. Senator
Mitch McConnell (R-Ky.) submitted an amendment to a House Bill giving Congress the ability
to halt EPA’s proposed regulations and submitted a resolution of disapproval under the
Congressional Review Act to stop EPA from issuing its rule.
32
Legislation
In 2014, 12 states—Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Missouri, Ohio,
Pennsylvania, Virginia, West Virginia and Wyoming—introduced legislation that would have
authorized a state agency to develop regulations for carbon dioxide emissions from coal- and
natural-gas fired electric generating units or explore the impact of such proposed regulations.
Legislation was enacted in Kansas, Kentucky, Louisiana, Missouri, Pennsylvania, Virginia, West
Virginia and Wyoming. Much of the legislation directed the administrative entity to consider
factors such as cost, adequately demonstrated technology, achievability and efficiency when
developing regulations. Additionally, legislation may have granted the administrative entity
flexibility in implementing state-developed regulations and compliance deadlines. Several states
included provisions adopting flexible regulatory mechanisms, including averaging emissions,
emissions trading or alternative measures. Legislation in Pennsylvania required state plans to be
approved by the General Assembly before plans can be submitted to EPA. Legislation in
Virginia required a cost-benefit analysis of EPA’s regulations on energy producers and electric
utility producers, as well as policy options for meeting the standard, to be included in an update
to the state energy plan. Wyoming legislation related to EPA's regulatory authority as directed by
the Constitution. Legislation was introduced but not enacted in nine states.
Legislative summaries of enacted bills are included below in Table 5.
Resolutions
In 2014, 20 states introduced 34 resolutions concerning EPA’s regulations on carbon dioxide
emissions; 20 resolutions were adopted in 16 states. The majority of these resolutions
emphasized state authority to develop and implement regulations, as directed by the Clean Air
Act. Resolutions also urged EPA to honor flexibility in state plans, with a focus on regional or
state variations and compliance deadlines. Several resolutions urged EPA to develop separate
regulations for highly efficient coal-fired generation units based on ultra-supercritical and
supercritical technologies. Resolutions also urged the administration or Congress to develop a
national energy strategy or to fund further research in carbon capture and sequestration (CCS)
technology. Additionally, numerous resolutions urged EPA to base regulations on adequately
demonstrated emission-reduction technology or on achievable measures to reduce emissions.
Resolutions were introduced but not enacted in 11 states.
Legislative summaries of enacted resolutions are included below in Table 6.
TABLE 5: Enacted Legislation as of December 31, 2014
STATE BILL SUMMARY
Kansas
House Bill
2636
(Enacted)
Authorize the Secretary of Health and Environment to establish
separate standards of performance for carbon dioxide emissions
based on adequately demonstrated technology, cost, efficiency and
other measures that can be undertaken without requirements for
fuel switching, co-firing or limiting the utilization of the unit.
Allows for flexibility in meeting federal greenhouse gas standards
33
TABLE 5: Enacted Legislation as of December 31, 2014
STATE BILL SUMMARY
through alternative standards, compliance schedules or flexible
regulatory mechanisms.
Kentucky House Bill
388 (Enacted)
Authorizes the Energy and Environment Cabinet to establish
performance standards for the regulation of carbon dioxide
emissions from existing fossil fuel-fired electric generating units.
Establishes different criteria for coal-fired electric generating units
and natural gas-fired electric generating units. Allows for
flexibility in meeting federal greenhouse gas standards through
alternative standards or compliance schedules. Establishes that any
plan or performance standard for existing fossil-fuel generating
units has no legal effect if EPA does not issue federal rules or
guidelines for regulating carbon dioxide emissions from existing
electric generating units or if the rules are withdrawn or
invalidated by a court of competent jurisdiction.
Louisiana Senate Bill
650 (Enacted)
Creates the "Louisiana Carbon Dioxide Emission Fuel-Fired
Electrical Generating Unit Control Act." Authorizes the
Department of Environmental Quality to establish performance
standards for the regulation of carbon dioxide emissions from
existing fossil fuel-fired electric generating units. Establishes
different criteria for coal-fired electric generating units and natural
gas-fired electric generating units. Standards will be based on
adequately demonstrated technology, efficiency, achievable means
and other factors. Allows for flexibility in meeting federal
greenhouse gas standards through alternative standards or
compliance schedules.
Missouri
House Bill
1631
(Enacted)
Authorizes the Air Conservation Commission to develop
emissions standards for generating plants on a case-by-case basis
by considering a number of factors, including the useful life of
existing affected sources and commercially available and
economically feasible technology. Allows for flexibility in
meeting federal greenhouse gas standards through alternative
standards or compliance schedules. Clarifies the commission's
legal authority to carry out state plans with emission standards and
compliance schedules.
Missouri Senate Bill
664 (Enacted)
Authorizes the Air Conservation Commission to establish
standards of performance for carbon dioxide emissions from
existing fossil fuel-fired electric generating units on a case-by-case
basis. Standards will be based on adequately demonstrated
technology, efficiency and achievable means. Allows for
flexibility in meeting federal greenhouse gas standards through
alternative standards, compliance schedules or regulatory
mechanisms.
34
TABLE 5: Enacted Legislation as of December 31, 2014
STATE BILL SUMMARY
Pennsylvania
House Bill
2354
(Enacted)
Identical to PA S 1453 as introduced.
As amended: Requires the Department of Environmental
Protection to receive approval from the General Assembly for a
state plan to regulate carbon dioxide emissions for existing
stationary sources prior to submitting the state plan to the United
States Environmental Protection Agency for approval. Determines
actions the Department of Environmental Protection must take for
developing a state plan for carbon dioxide emissions from power
plants. Revises the process for the legislature to approve a state
implementation, where each chamber is no longer required to
submit a concurrent resolution, merely a resolution, approving the
plan.
Virginia
House Bill
1261
(Enacted)
Requires the Virginia Energy Plan to include an analysis of the
costs and benefits to energy producers and electric utility
customers resulting from EPA regulations to reduce carbon
dioxide emissions from fossil-fueled electric generating units,
including the effect on energy markets and reliability and the
commercial availability of technology required to comply with
such regulations. Requires the Division of Energy of the
Department of Mines, Minerals and Energy to establish energy
policy positions relevant to any potential regulations of the State
Air Pollution Control Board to reduce carbon dioxide emissions
from fossil fuel-fired electric generating units under Section
111(d) of the Clean Air Act. The division is required to address
policy options for establishing separate standards of performance
for carbon dioxide emissions from existing fossil fuel-fired electric
generating units to promote the plan's overall goal of fuel
diversity. The plan is also required to examine policy options for
state regulatory action to adopt less stringent standards or longer
compliance schedules than those provided for in applicable federal
rules or guidelines and identify options, to the maximum extent
permissible, for any federally required regulation of carbon
dioxide emissions from existing fossil fuel-fired electric
generating units. Companion bill to Senate Bill 615.
Virginia Senate Bill
615 (Enacted)
AS INTRODUCED: Requires the State Air Pollution Control
Board to establish separate CO2 performance standards for coal-
fired and gas-fired electric generating units on a case-by-case
basis, and based on the best system of emission reduction that has
been adequately demonstrated and can be reasonably achieved
without requiring the unit to switch fuel. Allows for flexibility in
meeting federal greenhouse gas standards through alternative
standards, compliance schedules or alternative regulatory
mechanisms.
35
TABLE 5: Enacted Legislation as of December 31, 2014
STATE BILL SUMMARY
AS AMENDED: Requires the Virginia Energy Plan to include an
analysis of the costs and benefits to energy producers and electric
utility customers resulting from EPA regulations to reduce carbon
dioxide emissions from fossil-fueled electric generating units,
including the effect on energy markets and reliability and the
commercial availability of technology required to comply with
such regulations. Requires the Division of Energy of the
Department of Mines, Minerals and Energy to establish energy
policy positions relevant to any potential regulations of the State
Air Pollution Control Board to reduce carbon dioxide emissions
from fossil fuel-fired electric generating units under Section
111(d) of the Clean Air Act. The division is required to address
policy options for establishing separate standards of performance
for carbon dioxide emissions from existing fossil fuel-fired electric
generating units to promote the plan's overall goal of fuel
diversity. The plan is also required to examine policy options for
state regulatory action to adopt less stringent standards or longer
compliance schedules than those provided for in applicable federal
rules or guidelines and identify options, to the maximum extent
permissible, for any federally required regulation of carbon
dioxide emissions from existing fossil fuel-fired electric
generating units. Amended bill is companion bill to House Bill
1261.
West
Virginia
House Bill
4346
(Enacted)
Authorizes the Department of Environmental Protection and the
Department of Environmental Protection Advisory Council to
establish separate standards of performance for carbon dioxide
emissions from existing coal-fired electric generating units and
existing natural gas-fired electric generating units. Standards
should address cost, adequately-demonstrated and achievable
means and efficiency. Allows for flexibility in meeting federal
greenhouse gas standards through alternative standards,
compliance schedules or regulatory mechanisms.
Wyoming Senate File
75 (Enacted)
Declares that the rulemaking authority of EPA is not authorized by
the Constitution of the United States, and has severely impacted
Wyoming's development of natural resources. Authorirzes the
Attorney General to take action before EPA to stop the
enforcement, administration or implementation of regulations,
following approval by the governor.
Source: National Conference of State Legislatures, 2014
36
TABLE 6: Adopted State Resolutions as of December 31, 2014
STATE RESOLUTION SUMMARY
Alabama
Senate Joint
Resolution 57
(Adopted)
Urges EPA, in developing guidelines for regulating carbon
dioxide emissions from existing power plants, to maintain
Alabama's and other states' authority as provided by the Clean
Air Act, to rely on state regulators to develop performance
standards for carbon dioxide emissions that take into account
the unique policies, energy needs, resource mix, and economic
priorities of Alabama and other states. Urges EPA to honor
state's authority to have maximum flexibility in implementing
state-established carbon dioxide performance guidelines,
including implementing less stringent performance standards
and establishing longer compliance schedules. Urges EPA to
issue standards based on adequately demonstrated carbon
dioxide- specific controls at fossil-fueled power plants.
Arizona
Senate
Concurrent
Resolution 1022
(Adopted)
Opposes the implementation of rules for new electric generating
units that require technology that is not commercially available
or technologically feasible. Supports EPA in issuing guidelines
for state-established performance standards that do not require
new source review. Urges to EPA to honor state's primary
authority to develop standards and using maximum flexibility to
implement state-established carbon dioxide performance
guidelines, including implementing less stringent performance
standards and establishing longer compliance schedules.
Supports congressional oversight of EPA to ensure state’s
authority to develop guidelines is respected.
Arkansas
Senate
Resolution 2a
(Adopted)
States that the Senate finds that EPA’s proposed guidelines for
reducing carbon dioxide emissions from fossil fuel-fired power
plants under §111(d) of the Clean Air Act interfere with the
sovereign power of the state to regulate electricity and to
determine the mix of energy resources that ensures reliable and
affordable supplies of electricity for its citizens. Urges EPA to
withdraw the proposed guidelines for reducing carbon dioxide
emissions from fossil fuel-fired power plants under §111(d) of
the Clean Air Act.
Florida
Senate
Memorial 1174
(Adopted)
Urges EPA to respect the primacy of states and to rely on state
regulators, who take into account the unique policies, energy
needs, resource mix, and economic and environmental priorities
of their respective states in developing performance standards,
compliance schedules, and guidelines for regulating carbon
dioxide emissions from existing power plants.
Georgia
House
Resolution 1158
(Adopted)
Encourages the administration and Congress to establish a
national energy policy. Encourages EPA to establish separate
guidelines for coal-fueled electric generating units that are
based on highly efficient units such as ultrasupercritical and
37
TABLE 6: Adopted State Resolutions as of December 31, 2014
STATE RESOLUTION SUMMARY
supercritical technologies without carbon capture and
sequestration, recognizing the fact that additional time is needed
for carbon capture and storage to become an adequately
demonstrated best system of emissions reduction. Supports
further efforts to research and develop carbon capture and
sequestration technologies. Encourages EPA to consult with
Georgia and all of the states as it develops greenhouse gas
emission guidelines for existing power plants, recognizing each
state's authority under the Clean Air Act to set source
performance standards. Supports maximum flexibility for states
to implement carbon dioxide performance standards for fossil-
fueled power plants. Identical to House Resolution 1159.
Georgia
House
Resolution 1159
(Adopted)
Encourages the administration and Congress to establish a
national energy policy. Encourages EPA to establish separate
guidelines for coal-fueled electric generating units that are
based on highly efficient units such as ultrasupercritical and
supercritical technologies without carbon capture and
sequestration, recognizing the fact that additional time is needed
for carbon capture and storage to become an adequately
demonstrated best system of emissions reduction. Supports
further efforts to research and develop carbon capture and
sequestration technologies. Encourages EPA to consult with
Georgia and all of the states as it develops greenhouse gas
emission guidelines for existing power plants, recognizing each
state's authority under the Clean Air Act to set source
performance standards. Supports maximum flexibility for states
to implement carbon dioxide performance standards for fossil-
fueled power plants. Identical to House Resolution 1158.
Illinois
House
Resolution 782
(Adopted)
Urges EPA, when developing guidelines for regulating carbon
dioxide emissions, to respect the primacy of Illinois and other
states and to rely on state regulators to develop performance
standards for carbon dioxide emissions that take into account
the unique policies, energy needs, resource mixes, and
economic priorities of Illinois and other states. Encourages EPA
to establish achievable measures for regulating greenhouse gas
emissions. Supports maximum flexibility for states to
implement carbon dioxide performance standards for fossil-
fueled power plants, including implementing less stringent
performance standards and establishing longer compliance
schedules. Companion bill to Senate Resolution 912.
Illinois
House
Resolution 1146
(Adopted)
Supports the role of nuclear energy in Illinois. Among other
provisions, urges EPA to adopt rules that treat low-carbon
resources, such as nuclear power plants, equally, regardless of
age or fuel source. Urges EPA to require actions to secure the
38
TABLE 6: Adopted State Resolutions as of December 31, 2014
STATE RESOLUTION SUMMARY
continued operations of Illinois' nuclear power plants as a
compliance mechanism to meet any new federal greenhouse gas
regulations and to adopt rules that allow the state to offset and
balance emissions from fossil fuel electric generational with
emission-free nuclear generation. Urges the Illinois
Environmental Protection Agency to prepare a report discussing
how the closure of nuclear power plants in the state will affect
the societal cost of increased greenhouse gas emissions.
Indiana
House
Resolution 11
(Adopted)
Urges EPA, in developing guidelines for regulating carbon
dioxide emissions from existing power plants, to respect the
primacy of Indiana and other states and to rely on state
regulators to develop performance standards for carbon dioxide
emissions that take into account the unique policies, energy
needs, resource mix, and economic priorities of Indiana and
other states. Urges to EPA to honor state's authority to have
maximum flexibility in implementing state-established carbon
dioxide performance guidelines, including implementing less
stringent performance standards and establishing longer
compliance schedules. Urges EPA to issue guidelines based on
achievable measures for reducing greenhouse gas emissions.
Indiana
House
Resolution 70
(Adopted)
Encourages the administration and Congress to establish a
national energy policy. Encourages EPA to establish separate
guidelines for coal-fueled electric generating units that are
based on highly efficient units such as ultrasupercritical and
supercritical technologies without carbon capture and
sequestration, recognizing the fact that additional time is needed
for carbon capture and storage to become an adequately
demonstrated best system of emissions reduction. Supports
further efforts to research and develop carbon capture and
sequestration technologies. Supports regulations that are cost-
effective for Indiana and do not require existing units to retire or
curtail operation. Supports performance standards that
recognize state and regional variations and would not mandate
modifications to the mix of fuels in existing or future resource
portfolios.
Louisiana
Senate
Resolution 180
(Adopted)
Urges EPA, in developing guidelines for regulating carbon
dioxide emissions from existing power plants, to respect the
primacy of Louisiana and other states and to rely on state
regulators to develop performance standards for carbon dioxide
emissions that take into account the unique policies, energy
needs, resource mix, and economic priorities of states. Urges
EPA to issue guidelines based on achievable measures for
reducing greenhouse gas emissions. Urges EPA to honor state's
authority to have maximum flexibility in implementing state-
39
TABLE 6: Adopted State Resolutions as of December 31, 2014
STATE RESOLUTION SUMMARY
established carbon dioxide performance guidelines, including
implementing less stringent performance standards and
establishing longer compliance schedules.
Missouri
House
Concurrent
Resolution 30
(Adopted)
Urges EPA to reject any federal fossil fuel emission rules or
regulations that would have the effect of removing coal as a
viable fuel option for both new and existing electric generation
in the state of Missouri and elsewhere, and to adopt rules and
regulations that allow state utility and environmental regulators
maximum flexibility and discretion in implementing rules and
regulations.
Missouri
House
Concurrent
Resolution 38
(Adopted)
Urges Congress to decrease EPA's authority to regulate water
quality and the use of coal and wood as energy sources.
Nebraska
Legislative
Resolution 482
(Adopted)
Urges EPA, in developing guidelines for regulating carbon
dioxide emissions from existing power plants, to respect the
primacy of Nebraska and other states and to rely on state
regulators to develop performance standards for carbon dioxide
emissions that take into account the unique policies, energy
needs, resource mix, and economic priorities of each state.
Urges EPA to issue guidelines based on achievable measures
for reducing greenhouse gas emissions. Urges to EPA to honor
state's authority to have maximum flexibility in implementing
state-established carbon dioxide performance guidelines,
including implementing less stringent performance standards
and establishing longer compliance schedules.
Oklahoma
Senate
Concurrent
Resolution 39
(Adopted)
Urges EPA, in developing guidelines for regulating carbon
dioxide emissions from existing power plants, to respect the
primacy of Oklahoma and other states and to rely on state
regulators to develop performance standards for carbon dioxide
emissions that take into account the unique policies, energy
needs, resource mix and economic priorities of Oklahoma and
other states. Urges EPA to issue guidelines and approve state-
established performance standards that are based on reductions
of carbon dioxide emissions achievable by measures undertaken
at fossil-fueled electric generation facilities. States that
Oklahoma and other states should be given maximum flexibility
by EPA to implement carbon dioxide performance standards for
fossil- fueled electric generation facilities within their
jurisdiction.
Pennsylvania
House
Resolution 815
(Adopted)
Urges EPA, in developing guidelines for regulating carbon
dioxide emissions from existing power plants, to respect the
primacy of Pennsylvania and other states and to rely on state
40
TABLE 6: Adopted State Resolutions as of December 31, 2014
STATE RESOLUTION SUMMARY
regulators to develop performance standards for carbon dioxide
emissions that take into account the unique policies, energy
needs, resource mix, and economic priorities of states. Urges
EPA to issue guidelines based on achievable measures for
reducing greenhouse gas emissions. Urges EPA to honor state's
authority to have maximum flexibility in implementing state-
established carbon dioxide performance guidelines, including
implementing less stringent performance standards and
establishing longer compliance schedules.
South
Dakota
House
Concurrent
Resolution 1022
(Adopted)
Urges the administration and Congress with input from federal
agencies to establish a national energy policy that encourages
access to and removal of impediments to all available domestic
sources of energy so that it is affordable and reliable. States that
the policy should not infringe upon states' authority already
provided by the Clean Air Act that allows states to take into
account existing power generation and resource mixes and
provide for states to be able to demonstrate less stringent
emission standards and longer compliance schedules. Urges the
administration and Congress that policy should recognize state
and regional variations in the provision of affordable and
reliable electricity so that each state can minimize compliance
costs to ratepayers and maintain reliability.
Utah
Senate
Concurrent
Resolution 9
(Adopted)
Calls upon EPA to issue greenhouse gas new source
performance standards for fossil- fueled electric generating
units and provide separate standards for coal-fueled steam
electric and natural gas combined-cycle generating units that
can be achieved with commercially demonstrated technologies
and that will permit the economic utilization of coal.
West
Virginia
House
Resolution 13
(Adopted)
Urges EPA, in developing guidelines for regulating carbon
dioxide emissions from existing power plants, to respect the
primacy of West Virginia and other states and to rely on state
regulators to develop performance standards for carbon dioxide
emissions that take into account the unique policies, energy
needs, resource mix, and economic priorities of West Virginia
and other states. Urges EPA to issue guidelines based on
achievable measures for reducing greenhouse gas emissions.
Urges to EPA to honor state's authority to have maximum
flexibility in implementing state-established carbon dioxide
performance guidelines, including implementing less stringent
performance standards and establishing longer compliance
schedules.
41
TABLE 6: Adopted State Resolutions as of December 31, 2014
STATE RESOLUTION SUMMARY
Wyoming
Senate Joint
Resolution 1
(Adopted)
Urges EPA, in developing guidelines for regulating carbon
dioxide emissions from existing power plants, to respect the
primacy of Wyoming and to take into account the unique
policies, energy needs, resource mix and economic priorities of
Wyoming and other states. Urges EPA to issue guidelines that
are practical and achievable measures for reducing greenhouse
gas emissions. Urges EPA to honor state's authority to have
maximum flexibility in implementing state-established carbon
dioxide performance guidelines.
Source: National Conference of State Legislatures, 2014
1 | The Legislative Role in Potential Interstate Collaboration on the Clean Power Plan © 2015 National Conference of State Legislatures
This brief explores the implications of state legislation as foundational to multi-state compliance approaches for the U.S. Environmental Protection Agency’s
(EPA) proposed Clean Power Plan. It examines the role played by state legislatures and offers a checklist of questions about legislative authorities that can be used by policymakers seeking interstate coordination. This document provides examples of “where to look” language in different state statutes that may guide policymakers interested in exploring the potential for interstate collaboration.
This document originally appeared as Appendix A in “Multistate Coordination Resources for Clean Power Plan Compliance: Sample Documents for Consideration,” released by the National Association of Regulatory Utility Commissioners (NARUC). View the entire publication on the NARUC website.
The Legislative Role in Potential Interstate Collaboration on the Clean Power Plan
JUNE 2015
The Legislative Role in Potential Interstate Collaboration on the Clean Power Plan © 2015 National Conference of State Legislatures
State policymakers—driven by the desire to make the elec-tric grid reliable, cost-effective and efficient—have acted on a number of fronts to promote interstate collaboration on energy resource planning and infrastructure development. Since state efforts to reduce carbon emissions are likely to have infrastructure and operational impacts beyond state borders, states may wish to consider a number of existing state policies as a jumping off point for creating a multi-state approach to EPA Clean Power Plan compliance.
Most legislative examples of interstate activity in this area have involved renewable energy credit trading and carbon emissions trading. States have chosen multi-state approach-es since they allow states to meet their policy goals at lower costs. States that can cheaply reduce emissions or build re-newable energy can sell their credits to states with higher compliance costs. These states can, in turn, attain credits for less than it would cost them to reduce emissions or build renewable generation themselves. As mentioned earlier, eco-nomic modelling has demonstrated that, for most states, a regional approach to the Clean Power Plan will also result in economic benefits and lower compliance costs.1
States have created multistate programs either through a formal interstate agreement or by coordinating less formal stakeholder agreements. States can utilize existing multistate programs to meet Clean Power Plan requirements at lower cost. Any degree of collaboration requires planning to reach a consensus or develop common components and tracking systems across participating states. Following are several ex-amples of state policies that could be harnessed to facilitate multi-state coordination for Clean Power Plan compliance.
The Legislative Role and AuthorityThe compliance plans that states will propose for the Clean Power Plan will be submitted by state air agencies and envi-ronmental regulators with significant input from state pub-lic utility commissions and energy offices. While the role of state legislatures in this process is critical, even though it may not be obvious. State legislatures across the nation are taking a more active role in shaping state and regional energy systems affecting energy generation, efficiency and grid infrastructure. They create the regulatory framework and enforcement authority for public utility commissions, air offices and other state agencies. Legislative action will likely be required to effectively meet Clean Power Plan re-quirements and to engage in multi-state compliance efforts.
Legislatures in nine states review their air offices’ section 110 of the Clean Air Act state implementation plans (SIPs) and an additional two legislatures review section 110 SIPs only in certain instances. As detailed in “Recent State Legislative
Action,” several states have recently enacted legislation en-suring legislative review or involvement in the Clean Power Plan state plan process.
Legislatures are determining their role in the Clean Pow-er Plan but face challenges due to the legislative calendar. When EPA releases finalized carbon dioxide emissions regu-lations under section 111(d) in the summer of 2015, a ma-jority of state legislatures will already have adjourned for the year. Next year in 2016, the Montana, Nevada, North Da-kota and Texas legislatures will not meet while legislatures in six states—Arkansas, Connecticut, Maine, New Mexico, North Carolina and Wyoming2—will have limited sessions.3
Approaches for CollaborationStates that are interested in coordinating or collaborating with other states on Clean Power Plan compliance have nu-merous approaches to consider. For example, two or more states could develop compliance plans for a joint goal, de-velop individual compliance plans but formally collaborate on specific components (such as renewable energy) or devel-op individual compliance plans but informally collaborate on specific components (such as through regional tracking systems). States could also complete joint analyses or share administrative entities for tracking and enforcement.
State entities can review the following Legislative Action Checklist to assess potential policy needs in their states. Fol-lowing the checklist, these topics—along with state legislative examples—are explored in greater depth in this Appendix. Examples of Legislative Components for CollaborationRegardless of the form, successful interstate collaboration includes several components.4 For example, a state entity must be authorized to engage in interstate collaboration, whether through emissions trading, renewable energy cred-it trading or other mechanisms. Authorization will likely come from the legislative branch but may originate in the executive branch as well. The framework for the collabora-tion, whether it be for renewable energy or carbon credit trading, and shared definitions of trading units must also be established. For example, renewable energy credit (REC) trading programs set one REC equal to one megawatt-hour of renewable energy; carbon markets set units at one ton of carbon dioxide emissions. Lastly, EPA requires state plans to be legally enforceable and states must ensure all emis-sions reductions—intrastate or interstate—meet EPA’s re-quirements for evaluation, measurement and verification (EM&V). States may develop their own methodologies, modify existing systems or use a federal system, such as the
The Legislative Role in Potential Interstate Collaboration on the Clean Power Plan © 2015 National Conference of State Legislatures
Legislative Action Checklist
1. Does your state have legislation enabling multistate efforts for: a. Trading of renewable energy credits for renewable energy standard compliance? b. Cap and trade participation and tracking of carbon credits?
2. Can the existing systems above accommodate greenhouse gas emissions reductions or be modi-fied to accommodate reductions?
3. Will these systems comply with EPA’s evaluation, measurement and verification (EM&V) protocols and what changes might be needed to enable compliance?
4. How were these systems created? What legislation might be needed to tailor these systems for 111(d) compliance?
5. Does your state engage in regional activities for: a. Fulfilling Clean Air Act requirements? b. Comprehensive state energy planning activities? c. Integrated Resource Planning or other utility generation and transmission planning?
If yes, how will they be involved in state efforts to comply with 111(d)? All regional energy planning entities should have some involvement in state 111(d) discussions.
6. What legislation might your state need to accommodate compliance with EPA greenhouse gas reduction regulations?
a. Designation of authority for plan implementation. b. Policies that create energy efficiency or renewable resource standards, or policies that in-
crease these standards. c. Policies that promote interstate planning and credit trading, or allow for future collaboration
if a state does not include multistate efforts in its initial plan? d. Will policies name specific groups of states to collaborate with or allow this to be open-end-
ed?
7. Does your state have shared policy definitions and programs with potential collaborators?
8. Does your state have legislation in place that places specific requirements on 111(d) compliance, such as adherence to a rate-based standard, requirements to consider multistate collaboration, etc.?
9. Will partner states be required to meet certain criteria? Must they have equivalent or stricter enforcement approaches? Does each state maintain enforcement authority over regulated state entities? Do any agreements specify liabilities that may or may not exist for failures that might occur within the partnership?
The Legislative Role in Potential Interstate Collaboration on the Clean Power Plan © 2015 National Conference of State Legislatures
Avoided Emissions and Generation Tool (AVERT).5 Adopt-ing standard elements will allow states to collaborate more easily, either immediately or down the road.
Existing state legislation that speaks directly to Clean Power Plan compliance may not exist. However, state laws estab-lishing interstate coordination on cap-and-trade programs, renewable energy credit trading, renewable portfolio stan-dard resource definitions, transmission and generation plan-ning, and participation in regional compacts may provide the foundation for coordination moving forward. The sec-tions below provide legislative examples exploring these concepts.
Cap and Trade Programs
Cap and trade programs establish a cap on emissions and either provide an allotment of emissions credits to regulated entities, or simply require all entities to buy credits on a market that was created to trade these credits. Cap and trade programs put a price on each unit of emissions. Emitters will either reduce emissions or buy credits from entities that can reduce emissions at a lower cost. This approach provides emitters with the flexibility to design emissions reduction strategies, which can include the sale or purchase of allow-ances, emissions control technology or efficiency measures. Emitters are required to measure and report emissions and are penalized for non-compliance. Cap and trade policies encourage regional collaboration and often result in lower compliance costs, efficiency, innovation and advanced ac-tion.6
Multiple cap and trade programs exist at the federal and state levels. For example, EPA has implemented cap and trade programs for sulfur dioxide, oxides of nitrogen (NOx) and other emissions through the Clean Air Interstate Rule, the Clean Air Visibility Rule, the Acid Rain Program and the NOx Budget Trading Program. State-level cap and trade programs have been developed through the nine-state Re-gional Greenhouse Gas Initiative in the northeast and mid-Atlantic, California’s Assembly Bill 32 program and the Western Climate Initiative.7
Regional Greenhouse Gas InitiativeThe Regional Greenhouse Gas Initiative (RGGI) is the oldest mandatory, market-based carbon dioxide emissions reduction program in the country.8 RGGI is a multi-state approach to carbon dioxide emissions reductions that uses a shared tracking system and allowance process, facilitating cross-state recognition of emissions reductions efforts. Pro-gram administration, however, operates largely on the state level through individual state carbon dioxide budget trading
programs. As detailed below, participating states have adopt-ed or developed legislation and regulations enforcing their participation in the regional strategy. Since the adoption proceeded on a state-by-state basis with a memorandum of understanding, rather than through an interstate compact, the initiative did not require Congressional approval.
RGGI was developed in 2003 by governors in Connecticut, Delaware, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont. Seven gov-ernors signed a memorandum of understanding in 2005, which outlined the program and established a framework for a model rule. Beginning in 2006, all nine states, with Maryland joining, adopted the model rule by legislation and regulation.9 Legislation was enacted in Vermont in 2006; Connecticut, Maine, New Jersey and Rhode Island in 2007; and Connecticut, Delaware, Maryland, Massachusetts and New Hampshire in 2008. Only regulations were adopted in New York; no legislation was enacted. In 2011, New Jersey withdrew from the memorandum of understanding.
States’ rulemaking processes included adopting legislation, except in New York, that created commonalities between state programs. State legislation or regulations defined RGGI or state-specific budget trading programs, as well as defining other participating members in the initiative. For example:
“CO2 Budget Trading Program” means the multi-state CO2 air pollution control and emissions reduction program established pursuant to this section and cor-responding regulations in other states as a means of reducing emissions of CO2 from CO2 budget sources (Conn. State Agencies Reg. §22a-174-31).
“Participating state” means a state that has established a regulation implementing a CO2 Budget Trading Program consistent with the Regional Greenhouse as Initiative model rule (Conn. State Agencies Reg. §22a-174-31).
“Regional greenhouse gas initiative” means the initia-tive referred to in the Memorandum of Understanding and the corresponding model rule that memorializes the ongoing cooperative effort by the State and other states to design and implement a regional carbon di-oxide cap-and-trade program covering carbon dioxide emissions from electrical generating units in the signa-tory states (Me. Rev. Stat. Ann. tit. 38, §580a).
Included in RGGI statutes is enabling legislation for states to participate in RGGI and engage in a cap and trade pro-
The Legislative Role in Potential Interstate Collaboration on the Clean Power Plan © 2015 National Conference of State Legislatures
gram. For example, in Delaware and Massachusetts:
Representatives of the RGGI states have formed a non-profit corporation called “RGGI Inc.” to assist in the development of the regional program for reducing CO2 emissions. The General Assembly explicitly authorizes and sanctions the prior and ongoing participation in RGGI Inc. by the Secretary of the Department of Natural Resources and Environmental Control, and the Chair of the Public Service Commission, and their duly authorized representatives, as part of their official duties. The State may contract with RGGI Inc., pay dues to RGGI Inc., and transfer funds to RGGI Inc. to facilitate implementation of the RGGI program (Del. Code Ann. tit. 7, §6044).
The department shall monitor and regulate emissions of greenhouse gases with the goal of reducing those emissions. The department shall adopt regulations to require the reporting and verification of statewide greenhouse gas emissions and to monitor and enforce compliance with this chapter (Mass. Gen. Laws Ann. ch. 21N, §2).
Lastly, states have explicitly authorized interstate collabora-tion and coordination through the RGGI program. Statutes from Massachusetts and New Hampshire are included be-low.
The executive office and the department may work with the participating regional greenhouse gas initia-tive states and other interested states and Canadian Provinces to develop a plan to expand market-based compliance mechanisms such as the regional green-house gas initiative to other sources and sectors neces-sary or desirable to facilitate the achievement of the greenhouse gas emissions limits (Mass. Gen. Laws Ann. ch. 21N, §7).
The department may establish and enforce the CO2 emissions budget trading program in cooperation and coordination with other states or countries that are participating in regional, national or international CO2 emissions trading programs with the same or sim-ilar purpose including: (a) Entering into any agree-ment or arrangement with the representatives of other states, including the formation of a for-profit or non-profit corporation, any form of association or any other form of organization, in this or another state; and (b) Participating in any such corporation, association, or organization, and in any activity in furtherance of the purposes of this subdivision, in any capacity including,
but not limited to, as directors or officers (N.H. Rev. Stat. Ann. §125-O:21).
California and the Western Climate InitiativeCalifornia enacted Assembly Bill 32 (AB32), “The Califor-nia Global Warming Solutions Act,” in 2006, requiring the state to reduce greenhouse gas emissions to 1990 levels by 2020 through a cap and trade program.10 The legislation re-quired the state to “adopt a regulation that establishes a system of market-based declining annual aggregate emission limits for sources or categories of sources that emit GHG emissions.” This system took effect in 2012. The act required the state air regulator, the California Air Resources Board, to develop reporting and verification mechanisms and authorized en-forcement authority through civil and criminal penalties.
California participates in the Western Climate Initiative currently, along with the Canadian provinces of British Co-lumbia, Manitoba, Ontario and Quebec. The goal of the initiative is to implement a multi-state and multi-province regional emissions trading program. The initiative was launched in 2007 as a collaboration between governors of five western states and grew to encompass seven western states and four Canadian provinces. The 11 partner states and provinces collaborated in developing program design documents for a regional trading program, which were re-leased in 2008 and 2010.11 In 2011, six states—Arizona, Montana, New Mexico, Oregon, Utah and Washington—formally left the Western Climate Initiative.
The Western Climate Initiative includes emissions from the electricity, transportation and residential and commercial fuel sectors. Before successfully joining the initiative, states or provinces must adopt an economy-wide greenhouse gas reduction goal for 2020 that is at least as stringent as the current Western Climate Initiative regional goal. The West-ern Climate Initiative currently uses the Compliance Instru-ment Tracking System Services for carbon credit monitor-ing.
To clarify participation in multistate agreements on trad-ing, the California Legislature enacted Senate Bill 1018 in 2012.12 The legislation declared that “a state agency, includ-ing, but not limited to, the State Air Resources Board, shall not link a market-based compliance mechanism… with any other state, province, or country unless the state agency notifies the Governor that the agency intends to take such action.” Ad-ditionally, the governor must determine that 1) the linked entity’s greenhouse gas emission reductions are equivalent or stricter than California’s requirements, 2) California main-tains enforcement authority over entities regulated by the program in California and in the linked jurisdiction, 3) the
The Legislative Role in Potential Interstate Collaboration on the Clean Power Plan © 2015 National Conference of State Legislatures
linkage maintains equivalent or stricter enforcement author-ity as California law, and 4) the proposed linkage will not impose any significant liability on the state for any failure as-sociated with the linkage (Cal. Government Code §12894). This legislation provided the basis for California and Quebec to successfully link their cap and trade programs in 2013. In April 2015, Ontario announced it plans to link their carbon market with California’s and Quebec’s markets.
Renewable Energy Credit Trading States track the generation of renewable energy with sophis-ticated tracking mechanisms. All 48 contiguous states and the District of Columbia fall within 10 renewable energy credit (REC) trading markets. States that participate in these markets benefit from buying and selling RECs and may fulfill state mandates for renewable generation.
Twenty-eight states and the District of Columbia have re-newable energy mandates and an additional nine states have set renewable energy goals.13 The mandates—also referred to as renewable portfolio standards or an RPS—require utili-ties to sell a specified percentage or amount of renewable electricity. In many states, standards are measured by per-centages of kilowatt-hours of retail electric sales. Iowa and Texas, however, require specific amounts of renewable en-ergy capacity rather than percentages, and Kansas requires a percentage of peak demand.
Successful components of—or barriers to—interstate inter-actions include definitions of renewable energy and credits, as well as the tracking systems themselves. Uniform defini-tions and practices between states encourage greater inter-state collaboration; on the other hand, states that define re-newable energy and RECs differently may experience more complications in interstate trading. States with variations in definitions do currently participate in interstate REC track-ing.14 Although many states currently coordinate renewable energy credit transfers across state boundaries, the incorpo-ration of carbon dioxide emission tracking in these systems may be further complicated by variances in definitions and systems. Consistency and clarity across states are important for accurate measurement and verification to avoid double counting credit for generation, a requirement for Clean Power Plan compliance. It is possible that EPA may release guidance or instructions regarding renewable energy and credit definitions.
Renewable Energy DefinitionsWhile states’ definitions of renewable energy include com-mon technologies (such as solar photovoltaic, solar thermal or wind energy), state statutes are not uniform. Differences in renewable energy definitions have implications for inter-
state trading of renewable energy. A renewable energy tech-nology recognized by two states, such as wind energy, could be generated in State 1 and sold to meet a requirement in State 2 for renewable energy. However, if a resource is con-sidered renewable in State 1, such as animal waste, and not considered as a renewable resource in State 2, credit for en-ergy from that generation source would not be recognized as renewable energy in State 2. While states currently buy and sell credit for renewable energy based on differing defi-nitions, if EPA designates a definition for renewable energy compatible for section 111(d) of the Clean Air Act compli-ance, this could impact both intrastate and interstate renew-able energy markets.
Renewable Energy Certificates and Tracking SystemsRenewable energy generation includes two components: the physical electricity generated and a credit of the environ-mental, social and other non-power attributes of renewable energy. When entities purchase renewable energy for renew-able portfolio standards they are purchasing the property rights to the credit for generation, known as a renewable energy credit or REC.15 RECs serve as a means of verify-ing renewable energy purchases or generation. Most sources consider one REC equivalent to one megawatt-hour of re-newable energy generation, or 1000 kilowatt-hours. How-ever, Arizona (Ariz. Admin. Code §14-21803) and Nevada (Nev. Rev. Stat. §704.78215) authorize one renewable en-ergy credit as equivalent to one kilowatt-hour.16
If states are adapting renewable energy tracking systems for 111(d) compliance, clarity on how states address environ-mental attributes—such as CO2 emissions—will be required for successful interstate trading and Clean Power Plan com-pliance. Several states describe a REC as generally contain-ing all environmental attributes, including Montana: “a tradable certificate of proof of 1 megawatt-hour of electricity generated by an eligible renewable resource that is tracked and verified by the commission and includes all of the environmen-tal attributes associated with that 1 megawatt-hour unit of electricity production” (Mont. §69-3-2003). However, some states place restrictions on which environmental attributes are included in RECs. For instance, California excludes sol-id waste treatment benefits of biomass or biogas (Cal. Public Utilities Code §399.11). By contrast, several state REC defi-nitions do not mention whether environmental attributes are included. States may find it helpful to review or modify REC definitions depending on their approach since envi-ronmental attributes may have to be incorporated or altered. For example, a state that does not include environmental attributes in a REC would not be able to use the REC for Clean Power Plan compliance.17 Including CO2 emissions
The Legislative Role in Potential Interstate Collaboration on the Clean Power Plan © 2015 National Conference of State Legislatures
in REC definitions would be an important step in including renewable energy standards as part of an enforceable Clean Power Plan compliance plan.
RECs are subject to the interconnected nature of the elec-tric transmission grid. Many states accept RECs generated in other states, especially if a state is in the service territory or REC trading system. For example, Minnesota statutes (Minn. Stat. §216B.1691) require all renewable energy credits to be recorded and tracked through the Midwest Renewable Energy Tracking System (M-RETS) for compli-ance. M-RETS is implemented in Illinois, Indiana, Iowa, Minnesota, Montana, North Dakota, Ohio, South Dakota, Wisconsin and the Canadian province of Manitoba.18
Although state definitions of renewable energy and RECs differ, these differences are often small enough not to in-terfere with cross-state tracking or collaboration. However, these differences may have more significant impacts when accounting for interstate and intrastate greenhouse gas emis-sion tracking. Currently, states fall into 10 different renew-able tracking system regions, except Hawaii which does not use a tracking system or have a definition for a REC (see map on page 7). These tracking systems serve as flexible, market-based trading mechanisms for RECs. Tracking sys-tems account for individual RECs through unique certifi-cate numbers, facilitate REC trading, retire used RECs to avoid double counting or resale, and verify RPS compliance. Using existing tracking systems for Clean Power Plan com-pliance could be beneficial to states as these systems already
have mechanisms to avoid double counting. Additionally, five ex-isting tracking systems currently serve multiple states, allowing for a degree of interstate coordination without requiring a formal joint emissions goal or compliance plan. Cost allocation for these systems is currently shared, which can lower compliance costs for in-dividual states.19
Several states operate individ-ual state programs, including Michigan (Mich. Comp. Law. §460.1043), Nevada (Nev. Rev. Stat. §704.7821), New York (in development), North Carolina (N.C. Gen Stat. §62-133.8) and Texas (Tex. Cod Ann. §39.904).
Several states, such as Nevada and North Carolina, imple-ment both a state tracking system and participate in a larger regional system for REC tracking outside of RPS obliga-tions. Some states, including Illinois (Ill. Rev. Stat. ch. 20 §3855/1-56), Montana (Mont. Code Ann. §69-3-2006) and Ohio (Ohio Rev. Code Ann. §4928.645) fall within the boundaries of multiple REC tracking systems, often because these states fall within different generation control areas. 20 In these states, statutes defer tracking system designation or development to the public utility commission, which can develop a state-specific system, determine use of an existing tracking system or systems, or allow for multiple third-party organizations to administrator credit tracking and aggrega-tion. Individual states and groups of states have developed these tracking systems; the North American Renewables Registry (NARR) is an available tracking mechanism if states do not participate in a regional or state tracking systems.
Currently, tracking systems do not incorporate greenhouse gas emission tracking. However, NARR announced in May 2015 that they will be adding functionality to support Clean Power Plan implementation.21 Two other tracking systems used in RGGI states, the PJM General Attributes Tracking System and the New England Power Pool General Informa-tion System, track emissions data for other attributes, such as sulfur dioxide and nitrogen oxides.22 REC tracking sys-tems that overlap with cap and trade program states already have experience in coordinating renewable energy and CO2 emissions reduction program data.
The Legislative Role in Potential Interstate Collaboration on the Clean Power Plan © 2015 National Conference of State Legislatures
Interstate Generation and Transmission Planning
Regional planning takes place on multiple levels. Large multi-state utilities plan for generation and transmission needs across their territories, while Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs) coordinate transmission across large regions to en-sure a balance between energy supply and demand. Since federal, regional, state and local entities are all involved in the development of transmission, states have made efforts to coordinate on a multistate level to streamline planning, siting and building of transmission lines and energy genera-tion.
Rhode Island empowers its office of energy resources to coordinate with other states and regional entities, includ-
ing the New England States’ Committee on Electricity and ISO-New England Inc., in the development of transmis-sion, generation and gas pipelines (R.I. Gen. Laws §39-31-4 through §39-31-7). The Alabama state energy office also coordinates regionally, and is empowered to enter into inter-state agreements for energy research or planning (Ala. Code §41-6A-4). Michigan requires its public utility commission to “[e]ngage in regional load management efforts to reduce the annual demand for energy whenever possible” (Mich. Comp. Laws §460.1095).
Many states have statutes requiring utilities to create inte-grated resource plans (IRPs), which emphasize evaluating generation and efficiency options while encouraging choices that promote reliability and minimize cost. Some of these plans reference a regional approach and encourage interstate cooperation during plan development. South Carolina’s
The Legislative Role in Potential Interstate Collaboration on the Clean Power Plan © 2015 National Conference of State Legislatures
plan (S.C. Code Ann. §58-37-40), for example, requires the State Energy Office to coordinate with regional groups, in-cluding the Southern States Energy Board, when preparing the integrated resource plan. Nebraska legislation (Legisla-tive Bill 469) enacted this spring requiring the state energy office to develop a state energy plan and that the plan must include an “analysis of other state energy plans and regional en-ergy activities that identify opportunities for streamlining and partnerships.”
In the West, which has no RTOs or ISOs, states have created the Northwest Power Pool Corporation, a non-profit corpo-ration with eight northwestern member states and two Ca-nadian member provinces that seeks to achieve maximum benefits from coordinated energy operations. While partici-pation is contingent on a voluntary general services agree-ment, the state of Washington’s statutes include references to interstate collaboration through the Northwest Power Pool Corporation. The state describes their net system power mix as including “any declared resources in the Northwest Power Pool identified by in-state retail suppliers or out-of-state entities that offer electricity for sale to retail customers…” (Wash. Rev. Code §19.29A.010).
Interstate CompactsStates have the ability to formally coordinate policy efforts through interstate compacts, which require congressional approval. Interstate compacts allow states to partner in de-veloping a collaborative strategy for addressing a shared, broad concern, such as oil and gas conservation or interstate transmission siting. Compacts can either be initiated by Congress or proposed by a select group of states. Stakehold-ers define powers and duties, definitions, organization, over-sight, enforcement and withdrawal procedures that member states must in turn adopt via legislation.
Several interstate compacts relating to energy have received Congressional approval and state participation. For example, the Western Interstate Nuclear Compact formed the basis for the Western Interstate Energy Board (WIEB) in 1969. WIEB serves to coordinate energy resources, development and exchange between 11 states and three Canadian prov-inces.23 Ten states enacted legislation adopting the compact between 1963 and 1977; one state participates in WIEB but has not enacted legislation. Another example, the Interstate Compact to Conserve Oil and Gas was established in 1935 and includes 30 member states, eight associate states and 10 international affiliates.24 All member states adopted the compact between 1935 and 1982.
In the Energy Policy Act of 2005, Congress authorized three or more contiguous states to enter into an interstate elec-
tric transmission siting compact without the need to receive Congressional approval for future compacts.25 While two states—Kansas26 and Washington27—have considered legis-lation to adopt an interstate transmission siting compact, no state has actually adopted the compact.
Other Regional ActionsAgencies in 15 states have the legal authority to participate in the Western Regional Air Partnership, a voluntary agree-ment between EPA, federal land managers and state, local and tribal entities concerning regional haze. The partner-ship offers access to data tracking and technical resources.28 Other executive-branch regional agreements include the Transportation & Climate Initiative in northeast and mid-Atlantic states and the Pacific Coast Collaborative.
Legislative Action on the Clean Power PlanIn the 2014 and 2015 sessions, state legislatures are consid-ering a number of bills that would affect a state’s compliance with the Clean Power Plan. In the 2014 legislative session, 23 states introduced bills or resolutions that related to the Clean Power Plan and 32 states did so in 2015.29 A number of enacted and pending bills would effect a state’s compli-ance options and pathways. A common theme explored by many state legislatures is requiring approval of a state plan by the legislature or a portion thereof. These compliance requirements should be factored into multi-state coordina-tion. Examples are included below.
• Legislation enacted in Arizona (Senate Bill 1007, 2015) establishes a Joint Legislative Review Committee. The committee is tasked with reviewing a proposed state plan, receiving public comment and to “consider wheth-er submission of the plan…is in the public interest.” Ad-ditionally, the legislation authorizes the director of the Department of Environmental Quality “may participate in one or more full or partial multijurisdictional plans or agreements, including plans or agreements with Indian Tribes, for the purposes of complying with this section.”
• Legislation enacted in Arkansas (Senate Bill 183, 2015) states that the “submission of a state plan is the preferred method of compliance with federal emission guidelines.” The legislation requires approval of a state plan by the governor and the legislative council, a decision-making body of legislators that meets between legislative ses-sions. Also contained in the bill is the text stating, “the Arkansas Department of Environmental Quality shall not submit a state plan to the United States Environmental Protection Agency… if the state plan: (1) Results in a sig-
The Legislative Role in Potential Interstate Collaboration on the Clean Power Plan © 2015 National Conference of State Legislatures
nificant rate increase annually for any rate class of the total delivered electricity cost per kilowatt hour or of the total natural gas cost per thousand cubic feet; or (2) Results in unreasonable reliability risks.”
• A Kansas bill enacted in 2014 (House Bill 2636) au-thorizes the Secretary of Health and Environment to establish separate standards of performance for carbon dioxide emissions based on adequately demonstrated technology, cost, efficiency and other measures that can be undertaken without requirements for fuel switching, co-firing or limiting the utilization of the unit. The bill also authorizes the secretary to “implement such [perfor-mance] standards through flexible regulatory mechanisms, including the averaging of emissions, emissions trading or other alternative implementation measures that the secre-tary determines to be in the interest of Kansas.” Legislation enacted in 2015 (House Bill 2233) establishes addition-al requirements for compliance plans.
• Legislation in Kentucky (House Bill 388, 2014) re-quires separate standards of performance for coal-fired and gas-fired units on a unit-by-unit basis through mea-sures that can be undertaken without requirements for fuel switching, co-firing or limiting the utilization of the unit.
• Louisiana legislation (Senate Bill 650, 2014) requires separate standards of performance for coal-fired and gas-fired units and measures that can be undertaken without requirements for fuel switching, co-firing or limiting the utilization of the unit. The bill also au-thorizes the Department of Environmental Quality to implement “regulatory mecha-nisms that provide flexibility in complying with such standards, including the averaging of emis-sions, emissions trading, or other alternative implementation mea-sures that are determined to fur-ther the interests of Louisiana and its citizens.”
• Enacted legislation in Missouri (House Bill 1631 and Senate Bill 664, 2014) authorizes the Air Conservation Commission to develop emissions standards for generating plants on a unit-by-unit basis. Legislation also requires that “[t]he commission shall not establish the following
compliance actions in any state implementation plan: (1) An allowance system or any other system based in any way upon an emission baseline or cap and trade system; or (2) Any system that requires emission reductions of a fixed per-centage on a local or statewide basis.”
• Pennsylvania legislation (House Bill 2354, 2014) re-quires the Department of Environmental Protection to consider “whether the Commonwealth should participate in multistate programs that already exist, or whether a new multistate carbon dioxide reduction program should be created,” whether the state should “work in partnership” with other states or whether market-based trading pro-grams should be included in the state plan. The bill also requires the legislature’s approval of a state plan, except in one specific series of events.
• Legislation in West Virginia (House Bill 4346, 2014) states “[t]he Department of Environmental Protection may implement, to the extent permissible, the standards of performance established under subsection (a) through regulatory mechanisms that provide flexibility in comply-ing with the standards (of performance), including aver-aging of emissions, emissions trading, or other alternative implementation measures that are determined to further the interests of West Virginia and its citizens.” The bill also requires separate standards of performance for coal-fired and gas-fired units that do not require switching from coal to other fuels or limiting the economic utilization of the unit. Another bill (House Bill 2004, 2015) reiter-ates the establishment separate performance standards and requires the legislature’s approval of a state plan.
The Legislative Role in Potential Interstate Collaboration on the Clean Power Plan © 2015 National Conference of State Legislatures
• Wyoming legislation (Senate File 75, 2014) authorizes the attorney general to take action to stop the enforce-ment, administration or implementation of Clean Pow-er Plan regulations, following approval by the governor.
• As of mid-June, legislation remains pending in a num-ber of states that has impacts on possible multi-state coordination.
o Pending legislation in Illinois (House Bill 2607 and Senate Bill 1485) would establish a market-based or cap-and-invest program for reducing carbon dioxide emissions. Legislation in North Carolina (House Bill 571) would require the Department of Environment and Natural Resources to consider market-based trading in a state plan.
o Another pending Illinois bill (House Bill 3293) would establish a low carbon portfolio standard and allow for out of state generation to qualify for credits.
o Pending legislation in South Carolina (House Bill 3707) would prohibit state agencies from develop a compliance plan until all legal challenges are re-solved.
o Legislation sent to the governor in Missouri (Senate Bill 142) and pending legislation in North Carolina (House Bill 571) would require the state to take into account how other states are formulating state plans or opportunities for partnerships.
o Legislation has been introduced in a number of states that would increase greenhouse gas emission goals or establish taxes or fees for fossil fuels, carbon reduction bonds, carbon credits programs, cap and trade or cap and dividend programs, or other finan-cial incentives for carbon reductions.
• In addition to legislation, Oklahoma Governor Mary Fallin issued Executive Order 2015-22 in April 2015 barring the state from submitting a 111(d) state plan and possibly hindering or delaying multi-state compli-ance options.
ConclusionState legislatures have a large role to play in creating Clean Power Plan compliance plans that address the regional na-ture of the nation’s electric grid. State policymakers have been the catalyst for the creation of a number of existing sys-tems, including renewable energy credit trading and cap and trade, which could be tailored to help with multi-state com-pliance efforts. Many of the challenges posed by the creation of these systems, including the operation of credit trading markets and coordination of state partnerships, have been addressed as these existing systems have been refined. While further legislative action may be needed in order for exist-ing programs to help with 111(d) compliance, they provide an excellent foundation for states wishing to take advantage of the economic benefits that can result from a multistate compliance approach.
NCSL ContactsGlen Andersen
Energy Program Director303-856-1341
Jocelyn DurkayEnergy Policy Specialist
Acknowledgments and DisclaimersThe document you are reading was created for the National Council on Electricity Policy and the Eastern Interconnection States Planning Council (EISPC), a project of the National Association of Regulatory Utility Commissioners (NARUC) Grants and Research Department. This material is based upon work supported by the Department of Energy under Award Number DE-OE0000578.
This report was authored by the NCSL Energy Program and the NARUC Grants and Research Department. The document is born out of a workgroup process and is informed by the conversations held by that workgroup. Throughout the preparation process, the members of this workgroup, who participate in NCSL, EISPC and NARUC and other associations, provided the authors with editorial comments and suggestions. However, the views and opinions expressed herein are strictly those of the author(s) and may not necessarily agree with positions of NCSL, EISPC, NARUC or those of the U.S. Department of Energy.
Notes 1. For more information, see Paul Hibbard, Andrea Okie, and Su-san Tierney, EPA’s Clean Power Plan: States’ Tools for Reducing Costs and Increasing Benefits to Consumers (Boston, Mass.: Analysis Group, 2014), http://www.analysisgroup.com/uploadedFiles/Content/Insights/Publish-ing/Analysis_Group_EPA_Clean_Power_Plan_Report.pdf; Jennifer Macedonia, Blair Beasley, Tracy Terry, Meghan McGuinness, and Stuart Iler, Insights from Modeling the Clean Power Plan (Washington, D.C.: Bipartisan Policy Center, 2015), http://bipartisanpolicy.org/library/insights-from-modeling-the-proposed-clean-power-plan/. 2. Legislative Sessions with Limited Scope (Denver, Colo.: National Conference of State Legislatures, n.d.), http://www.ncsl.org/default.aspx?tabid=23727; Debbie Smith and Curt Bramble, Comments on EPA Docket ID No. EPA-HQ-OAR-2013-0602 (Washington, D.C.: National Conference of State Legislatures, 2014), http://www.ncsl.org/docu-ments/standcomm/scnri/NCSL_111_D_Comments.pdf. 3. Ibid. 4. Jonas Monast, Tim Profeta, Jeremy Tarr, and Brian Murray, Enhancing Compliance Flexibility under the Clean Power Plan: A Common Elements Approach to Capturing Low-Cost Emissions Reductions (Durham, N.C.: Nicholas Institute for Environmental Policy Solutions, Duke Uni-versity, 2015), https://nicholasinstitute.duke.edu/climate/publications/enhancing-compliance-flexibility-under-clean-power-plan-common-elements-approach#.VWY-XkbD4Z5. 5. U.S. Environmental Protection Agency, AVoided Emissions and geneRation Tool (AVERT) (Washington, D.C.: U.S. EPA, 2015), http://epa.gov/avert/. 6. U.S. Environmental Protection Agency, Cap and Trade (Wash-ington, D.C.: U.S. EPA, 2015), http://www.epa.gov/captrade/. 7. U.S. Environmental Protection Agency, Cap and Trade Programs (Washington, D.C.: U.S. EPA, 2015), http://www.epa.gov/captrade/programs.html. 8. RGGI Inc., The Regional Greenhouse Gas Initiative (New York, N.Y.: RGGI Inc., n.d.), http://www.rggi.org. 9. RGGI Inc., Program Design (New York, N.Y.: RGGI Inc., n.d.), http://www.rggi.org/design. 10. California Air Resources Board, Assembly Bill 32 Overview (Sacramento, Calif.: California Environmental Protection Agency, 2015), http://www.arb.ca.gov/cc/ab32/ab32.htm. 11. Western Climate Initiative, History (Sacramento, Calif.: West-ern Climate Initiative, 2013), http://www.westernclimateinitiative.org/history. 12. California Air Resources Board, Linkage (Sacramento, Calif.: California Environmental Protection Agency, 2015), http://www.arb.ca.gov/cc/capandtrade/linkage/linkage.htm. 13. Jocelyn Durkay, State Renewable Portfolio Standards and Goals (Denver, Colo.: National Conference of State Legislatures, 2015),
http://www.ncsl.org/default.aspx?tabid=27705. 14. The Cadmus Group, Exploring and Evaluating Modular Ap-proaches to Multi-State Compliance with EPA’s Clean Power Plan in the West (Denver, Colo.: The Cadmus Group, 2015), http://www.cadmus-group.com/papers-reports/clean-power-plan-west/. 15. U.S. Environmental Protection Agency, Renewable Energy Certificates (RECs) (Washington, D.C.: U.S. EPA, 2015), http://www.epa.gov/greenpower/gpmarket/rec.htm. 16. Jan Hamrin, REC Definitions and Tracking Mechanisms Used by State RPS Programs (Montpelier, Vt.: Clean Energy States Alliance, 2014), http://www.cesa.org/assets/2014-Files/RECs-Attribute-Defini-tions-Hamrin-June-2014.pdf. 17. Ibid. 18. Midwest Renewable Energy Tracking Inc., M-RETS (St. Paul, Minn.: M-RETS Inc., 2015), http://www.mrets.org/. 19. The Cadmus Group, Exploring and Evaluating Modular Ap-proaches to Multi-State Compliance with EPA’s Clean Power Plan in the West. 20. Jan Hamrin, REC Definitions and Tracking Mechanisms Used by State RPS Programs. 21. APX, The North American Renewables Registry Adds Function-ality to Support Clean Power Plan Implementation (New York, N.Y.: APX, 2015), http://www.narecs.com/2015/05/13/the-north-american-renewables-registry-adds-functionality-to-support-clean-power-plan-implementation/. 22. Jan Hamrin, REC Definitions and Tracking Mechanisms Used by State RPS Programs. 23. National Center for Interstate Compacts, Western Interstate Energy Compact (Lexington, Ky.: Council of State Governments, 2015), http://apps.csg.org/ncic/Compact.aspx?id=210. 24. National Center for Interstate Compacts, Interstate Compact to Conserve Oil and Gas (Lexington, Ky.: Council of State Governments, 2015), http://apps.csg.org/ncic/Compact.aspx?id=81. 25. U.S. Congress, Energy Policy Act of 2005, Title XII, Subtitle B, Section 1221, http://energy.gov/sites/prod/files/2013/10/f3/epact_2005.pdf. 26. Kansas Legislature, House Bill 2101 Substitute, 2013, http://www.kslegislature.org/li_2014/b2013_14/measures/hb2101/. 27. Washington Legislature, House Bill 1030, 2013, http://app.leg.wa.gov/billinfo/summary.aspx?bill=1030&year=2013. 28. Western Regional Air Partnership, Regional Emissions Data and Analyses (Denver, Colo.: Western Governors’ Association, 2010), http://www.wrapair2.org/emissions.aspx. 29. Melanie Condon and Jocelyn Durkay, States’ Reactions to Pro-posed EPA Greenhouse Gas Emissions Standards (Denver, Colo.: National Conference of State Legislatures, 2015), http://www.ncsl.org/default.aspx?tabid=28051.
William T. Pound, Executive Director
7700 East First Place, Denver, Colorado 80230, 303-364-7700 | 444 North Capitol Street, N.W., Suite 515, Washington, D.C. 20001, 202-624-5400
www.ncsl.org
©2015 by the National Conference of State Legislatures. All rights reserved.
ISBN 978-1-58024-802-0
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NCSL Online Resources
NRI Committee 2015 Spring Webinar Series
EPA Greenhouse Gas Emissions Regulations: States’ Options and Responses
http://www.ncsl.org/default.aspx?tabid=29288
April 30, 2015
EPA Regulations: What Are They and What Do They Mean for Your State?
http://www.ncsl.org/default.aspx?tabid=29288
June 5, 2015
NCSL Comments to EPA, re: Proposed Greenhouse Gas Emissions Standards for Existing
Power Plants
http://www.ncsl.org/documents/standcomm/scnri/NCSL_111_D_Comments.pdf
October 16, 2014
NRI Committee Air Policy Directive
http://www.ncsl.org/default.aspx?tabid=27191
NRI Committee Climate Change Resolution
http://www.ncsl.org/default.aspx?tabid=27191
55
Reports of Interest on State Implementation
Advanced Energy Economy - Design Principles for a Rate-Based Federal Plan Under EPA's Clean
Power Plan http://info.aee.net/rate-based-federal-plan-under-clean-power-plan
Analysis Group - EPA’s Clean Power Plan: States’ Tools for Reducing Costs and Increasing Benefits
to Consumers
http://www.analysisgroup.com/uploadedfiles/content/insights/publishing/analysis_group_epa_clean_po
wer_plan_report.pdf
Bipartisan Policy Center - Choosing a Policy Pathway for State 111(d) Plans to Meet State Objectives
http://bipartisanpolicy.org/wp-content/uploads/2015/05/Policy-Pathways-Paper.pdf
Cadmus - Exploring and Evaluating Modular Approaches to Multi-State Compliance with EPA’s Clean
Power Plan in the West
http://www.cadmusgroup.com/papers-reports/clean-power-plan-west/
Center for New Energy Economy, Colorado State University - A State Planning Guide for Clean Air
Act Section 111(d) - A State Planning Guide for Clean Air Act Section 111(d)
http://cnee.colostate.edu/graphics/uploads/CNEE_CAA-Section-111d-State-Planning-Guide-6_2014.pdf
Nicholas Institute for Environmental Policy Solutions, Duke University - Enhancing Compliance
Flexibility under the Clean Power Plan: A Common Elements Approach to Capturing Low-Cost
Emissions Reductions
https://nicholasinstitute.duke.edu/climate/publications/enhancing-compliance-flexibility-under-clean-
power-plan-common-elements-approach#.Va0nY_lVhHw
Nicholas Institute for Environmental Policy Solutions, Duke University - The Clean Power Plan:
Implications of Three Compliance Decisions for U.S. States
https://nicholasinstitute.duke.edu/climate/publications/clean-power-plan-implications-three-compliance-
decisions-us-states#.ValkNflVhHw
Environmental Law Reporter - The Legal Scrutiny Surrounding 111(d): Will It Survive or Stumble?
http://elr.info/news-analysis/44/11058/legal-scrutiny-surrounding-%C2%A7111d-will-it-survive-or-
stumble
Georgetown Climate Center - Single State Clean Power Plan Compliance Approaches with Interstate
Elements http://www.georgetownclimate.org/single-state-clean-power-plan-compliance-approaches-
with-interstate-elements
Georgetown Climate Center - Supporting State Plan Compatibility and Interstate Compliance with the
Clean Power Plan
http://www.georgetownclimate.org/supporting-state-plan-compatibility-and-interstate-compliance-with-
the-clean-power-plan
Georgetown Climate Center - An Overview of Potential Clean Power Plan Compliance Pathways
http://www.georgetownclimate.org/an-overview-of-potential-clean-power-plan-compliance-pathways
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National Association of Clean Air Agencies – Implementing EPA’s Clean Power Plan: A Menu of
Options
http://www.4cleanair.org/NACAA_Menu_of_Options
National Association of Regulatory Utility Commissioners - Multistate Coordination Resources for
Clean Power Plan Compliance
http://www.naruc.org/Publications/Multistate%20111d%20Coordination.pdf
National Association of State Energy Officials - Incorporating EE and RE Policies into Greenhouse
Gas Compliance Plans
http://111d.naseo.org/incorporating-ee-and-re-policies-into-section-111d
Regulatory Assistance Project - Tracking Emissions Associated with Energy Serving Load in the
Regional Greenhouse Gas Initiative (RGGI) States
http://www.raponline.org/document/download/id/6509
Sabin Center for Climate Change Law, Columbia Law School - States Should Think Twice Before
Refusing Any Response to EPA’s Clean Power Rules
https://web.law.columbia.edu/sites/default/files/microsites/climate-change/selmi_-
_states_should_think_twice_before_refusing_any_response_to_epas_clean_power_rules.pdf
