A majority of states have filed comment letters critical of the EPA’s proposed rule regulating greenhouse gas emissions from existing sources. One might think the state push back presages significant changes in the final rule. Unfortunately, despite state concerns, it is unlikely EPA will do more than make slight adjustments around the edges.

In 2013 and 2014, EPA Administrator Gina McCarthy made it clear that the states – in the form of the Environmental Council of the States and the National Association of Regulated Utility Commissioners – were the key stakeholders her agency would listen to while developing the 111(d) draft rule. Her agency engaged at an unprecedented level with the states, sponsoring meetings of state officials and traveling around the country to meet with state regulators in their districts. As someone who witnessed a few of these stakeholder meetings first hand, I can assure you the states have been raising concerns about EPA’s approach to existing source regulation long before there was a proposed rule.

EPA apparently ignored the input it received from the states. A review of state comments recently released by the U.S. Chamber of Commerce shows considerable state dissatisfaction with EPA’s proposed rule:

  • Thirty-two states express concern about the legality of the rule.
  • Thirty-two states are concerned the rule will reduce electric reliability.
  • Twenty-eight states think the rule will have a negative effect on jobs and the economy.
  • Thirty-five states question the the draft rule’s technological assumptions and whether or not compliance is feasible. Inability of states to comply with the rule is of particular concern because the EPA will have authority impose a Federal Implementation Plan on any state that does not develop a State Implementation Plan to its satisfaction.
  • Thirty-three states are critical of using the year 2012 as a baseline for greenhouse gas emissions.

These pitfalls, challenges, and concerns with the 111(d) rulemaking were long ago brought to EPA’s attention by the states. If EPA chose to disregard state input before the rule was even proposed, then it is unlikely the agency will be making big changes based on the state comment letters – unless, of course, the states rally the new Republican controlled Senate to their side.