POWER February 2016 - 34

LEGAL & REGULATORY
5. Considering the Clean Power Plan. Left to right: Jim McTarnaghan, Perkins Coie;
Svend Brandt-Erichsen, Marten Law; Patrick Ferguson, Davis Wright Tremaine; Allison Wood,
Hunton & Williams; Gail Reitenbach, POWER. Source: POWER/Aaron Larson
and asked, " What happens if renewable energy
growth is not enough to meet the demand? "
Jim McTarnaghan, a partner with Perkins
Coie, offered an observation that he suggested
explains much of the texture of support and
opposition to the CPP. A map of the states suing
and supporting the plan, when colored red
and blue, " looks a lot like the state-by-state
maps of the last two presidential elections. "
States that support the plan, like California,
tend to have some things in common: aggressive
RPSs, gas-heavy power mixes, and voters
who are sensitive to climate change issues and
support measures to address it. States opposing
the plan tend to be coal heavy and populated
by voters who are concerned about impacts on
coal industry jobs. There's a real sense in the
" anti " states that the rule is not being applied
equally and fairly, McTarnaghan noted.
All four panelists agreed that some level of
some states that SIPs may not be feasible-
or even legal. Several state legislatures have
passed or are considering measures barring
regulators from submitting a SIP. For those
states, regulators may have no choice but to
accept a Federal Implementation Plan (FIP).
States designing a SIP need to choose
between mass-based (total emissions reductions)
and rate-based (statewide pounds of
CO2
/MWh) goals. Rate-based goals are more
flexible, Ferguson noted, but mass-based
goals may be simpler to implement. The EPA
is encouraging emissions trading, but the
CPP does not allow trading between states
using different approaches.
Ferguson said multi-state trading plans are
likely to be more efficient and effective in the
long run, based on existing experiments such
as the Regional Greenhouse Gas Initiative
6. Projecting based on past experience.
Robert Meyers of Crowell & Moring,
and former head of the EPA's Office of Air
and Radiation, offered his projections for energy
policy, regulation, and litigation. Source:
POWER/Gail Reitenbach
(RGGI). Existing programs like RGGI are actually
well ahead of the curve and on track to
meet CPP goals by 2020. California, as a result
of its aggressive RPS, will also be well beyond
its goal by 2030. That will leave these states
ample room for trading with other states.
Svend A. Brandt-Erichsen, managing partner
at Marten Law, drew attention to what he
called the " big idea " behind the CPP. The EPA
sees fuel substitution between coal, gas, and
renewables taking place every day across the
grid for economic reasons. What it wants to do
is interpret " best system of emissions reduction "
in the CAA to require the same sorts of
dispatch choices for environmental reasons.
Brandt-Erichsen sees the potential for some
significant interstate tensions. He discussed the
examples of Oregon, Washington, and Montana.
The first two states support the CPP, while Montana
is suing to block it. Oregon and Washington
each have only one coal plant that will soon shut
down. Both states have enough other renewable
and gas-fired capacity to survive the closures,
which also give them enough room under their
goals to build new generation.
Montana, by contrast, has several large
coal plants and a steep 47.4% emissions reduction
goal. The retirement of the Corette
plant this year will help, but Montana still
needs to make steep cuts in its coal generation,
mostly at the 2-GW Colstrip plant. But
there's a problem for state regulators: The
largest share of the obligation for reductions
will fall on the Oregon- and Washingtonbased
utilities that own and operate most of
Colstrip's capacity, he noted.
Some states like Oregon and Washington
may see sufficient renewables growth to meet
the targets, but that won't be the case everywhere.
Brandt-Erichsen suggested the EPA's
projections for growth were " highly optimistic "
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interstate cooperation was inevitable given the
degree to which the CPP encourages it. The
FIP-likely to be imposed on many states-
Ferguson noted, is " trading ready, " meaning that
even states opposed to the plan may have little
choice about participating in regional solutions.
What Lies Ahead?
In his luncheon keynote address, Robert Meyers
of Crowell & Moring, and former head of
the EPA's Office of Air and Radiation, offered
his projections for energy policy, regulation,
and litigation (Figure 6). " Is this an inflection
point for energy policy? " he asked rhetorically,
before pointing to the combination of
recent reports on the potential for decarbonization,
the Paris climate change talks taking
place the same week as POWER's event, and
the " slow-moving trainwreck " of multiple
power plant-related regulations.
Meyers predicted that it will be very difficult
to keep the CPP on schedule and suggested
that even if a Democrat wins the White
House in the November elections, there may
be changes to recent regulations. " A regulatory
'pause' is likely in either case, " he said,
based on past presidential transitions.
That said, in the Q&A period, Meyers noted
that the CPP is a final rule, and the odds of
a stay are poor, in his opinion, so states and
generators need to be involved in the development
of SIPs. If he were a generator, he
said, he would be talking to his state regulator
and governor right now. " You've got to
deal with it now, " he underscored, " and if you
get more time, you're lucky. "
More detailed coverage of this event was
provided in online news stories at powermag.
com the week of December 7. ■
-Aaron Larson, Thomas W. Overton,
JD, and Sonal Patel are POWER associate
editors. Gail Reitenbach, PhD is
POWER's editor.
POWER | February 2016
http://www.powermag.com
POWER February 2016

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