As Clean Power Plan is Litigated, More States are “Putting their Pencils Down”

In early February, the U.S. Supreme Court elected to stay implementation of the U.S. Environmental Protection Agency’s (EPA) Clean Power Plan (CPP). This recently finalized regulation – the centerpiece of President Obama’s climate policy and the U.S.’s commitment to the recent Paris climate agreement – would ostensibly reduce domestic carbon dioxide emissions from fossil fuel-fired power plants by 32 percent by 2030 from a 2005 baseline.

In the wake of the stay announcement, Patrick Morrissey and Ken Paxton, attorneys general of West Virginia and Texas, respectively, and the lead petitioners in the states’ case, recommended that state officials “put their pencils down” and cease any efforts to develop a state plan until the legality of the rule is settled. With the Court of Appeals for the D.C. Circuit only scheduled to hear the case later this summer, this probably won’t happen until the Supreme Court considers the case sometime in 2017.

Wisconsin Governor Scott Walker was one of the first to agree with this suggestion and signed an executive order in late February barring Wisconsin state agencies from immediately developing a plan. Since Walker’s executive order, three other states have similarly indicated they will not immediately commit state resources to developing a plan:

• Arkansas – The Department of Environmental Quality and the Public Service Commission recently issued a joint statement saying that the state would not develop or implement a state plan during the stay.
• Utah – Governor Gary Herbert announced that he has suspended formal efforts to comply with the CPP during the stay.
• Wyoming – Governor Matt Mead signed a two-year budget deal that contains a provision that blocks funds from being used to develop a state plan.

ALEC will keep readers updated as more states announce their intentions.