Palpable relief swept through a Santa Fe conference room last September when Air Administrator Janet McCabe announced to the nation’s state environmental commissioners that the United States Environmental Protection Agency (EPA) would extend its comment deadline on their 111(d) existing source rule making. I imagine many states are again feeling relief now that EPA has confirmed it will delay until June 2015 the publication of the final rule for 111(b), new sources. This delay is not unexpected, as the EPA extended the comment period and received in excess of two million comments on the rule. Adequate review of comments is legally required. It takes time for the EPA lawyers to process through all that verbiage.
The delay means mid-summer will be an historic month for command-and-control style US climate policy. The 111(d) (new source) and 111(b) (existing source) final rules will roll out. These final rules will be followed closely by the release of EPA’s proposed federal implementation plan (FIP) for states who fail to develop compliant 111(b) and 111(b) state implementation plans (SIP). This anticipated FIP proposal will be as important as the two final rules, because EPA has made it clear it intends to swoop in and write the rules themselves for states that submit an unsatisfactory greenhouse gas SIP.
While a publication delay for the 111(d) final rule is not expected at this time, keep in mind that the existing source rule was also the subject of comment period extensions and over two million comments. EPA can justify another delay using the same reasoning. The states themselves have filed voluminous comments letters expressing concerns about the proposed existing rule, ranging from BSER (Best System for Emissions Reductions) to reliance on efficiency and nascent renewable and storage technologies for achieving emissions targets. It remains to be seen how EPA will respond to these state concerns in the final rule. The agency’s timeline already includes compliance extensions for states who struggle to adapt to in this “brave new world” of US command-and-control carbon regulation, so expect further delays in the implementation process.
If there is any additional delay in rolling out the final 111(d) or 111(b) rules, expect EPA to try mightily to publish them in time for the United Nation’s Climate Change Conference this December in Paris.