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Clean Power Plan Published in Federal Register
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Clean Power Plan Published in Federal Register

On October 23, EPA published the final Clean Power Plan for existing electricity generating units in the Federal Register (80 FR 64662). The official publication will trigger a flurry of lawsuits and launch what promises to be a lengthy war in the courts over the Obama administration's regulation to reduce CO2 emissions from the power sector. Lawyers on both sides of the issue have been waiting for the rule's formal publication, which opens a 60-day window for opponents to sue in federal appeals court, as a raft of legal challenges are expected from states and industry groups that have publicly denounced the regulation. EPA also published in the October 23 Federal Register (80 FR 64510) the final new source performance standards (NSPS) for newly constructed, modified, and reconstructed affected fossil fuel-fired electric utility generating units (EGUs).

States and industry litigants are expected to challenge the final existing power plant rule on many of the same grounds they previewed in lawsuits to stop last year's draft version. Critics are expected to ask the U.S. Court of Appeals for the District of Columbia Circuit to block the rule, arguing they'll be harmed by its implementation. EPA and its allies, meanwhile, say they're confident the rule will stand up to legal scrutiny.

Earlier this year, the D.C. Circuit dismissed an attempt by more than a dozen states, energy companies and industry groups to block EPA from finalizing its greenhouse gas standards for power plants. In an unusual move, EPA's challengers asked the judges to halt the rule before it was finalized, arguing it will have a significant economic impact and questioning whether EPA has the authority under the Clean Air Act to issue it. The court said the challengers had to wait until the rule was final.

EPA also published in the October 23 Federal Register (80 FR 64966) EPA's proposed model plans for states and its draft federal implementation plan (FIP). The former is intended to guide states as they craft their own plans or to act as a ready-made option, but the latter shows how EPA would enforce CO2 emission reductions on power plants in states that opt not to comply. EPA will also take comment on the voluntary Clean Energy Incentive Program (CEIP) it included in its final version of the rule for early action, and EPA announced that it planned to hold meetings with stakeholder groups to discuss the program. Comments are due January 21, 2016 to Docket ID No. EPA–HQ–OAR–2015–0199.

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