Category: Clean Power Plan

Trump Administration Releases Clean Power Plan Replacement Proposal
Nine States to Collaborate to Release a New Action Plan to Accelerate the Adoption of Electric Vehicles
Oregon Lawmakers Consider Carbon Pricing Legislation
The Washington State Department of Ecology Reissues Clean Air Rule
Update on EPA’s Clean Power Plan
High Court Grants Stay of Clean Power Plan
FERC Issues Staff White Paper on Guidance Principles for Clean Power Plan Modeling; Suggests Stakeholder Engagement to Consider Reliability Issues
Paris Climate Talks Conclude: Key Takeaways from a Critical Meeting
Greenhouse Gas Regulation in Washington: What the Clean Power Plan and Washington Clean Air Rule Mean for the State
Clean Power Plan Legal Battles Commence while EPA Fine-Tunes Incentives and Enforcement Mechanisms

Trump Administration Releases Clean Power Plan Replacement Proposal

Advancing President Trump’s campaign promise to end the “war on coal,” on August 21, 2018, the U.S. Environmental Protection Agency (“EPA”) proposed a new rule to replace the Obama administration’s Clean Power Plan (“CPP”). Unlike the CPP, the proposed Affordable Clean Energy Rule (the “ACE Rule”) does not set numerical standards or targets for greenhouse gas (“GHG”) emissions. Instead, the ACE Rule would give states flexibility to set their own standards of performance for existing coal-fired power plants. EPA asserts that the ACE Rule will eventually reduce GHG emissions to a similar extent as the CPP would have; however, according to EPA, the ACE Rule would reduce GHG emissions by 1.5% by 2030, compared to 32% by 2030 under the CPP. Interested parties will have 60 days from the date of publication in the Federal Register to comment on the ACE Rule.

To read the full alert, click here.

Nine States to Collaborate to Release a New Action Plan to Accelerate the Adoption of Electric Vehicles

By William M. Keyser and Toks A. Arowojolu

On June 20, 2018, the Multi-State Zero Emission Vehicle (ZEV) Task Force released an Action Plan designed to accelerate the adoption of electric vehicles in the United States. The Action Plan presents 80 strategies and recommendations for states, automakers, charging and fueling infrastructure companies, utilities, and other partners to achieve rapid ZEV market growth in five core areas:

  • consumer education and outreach;
  • charging and hydrogen fueling infrastructure;
  • consumer purchase incentives;
  • light-duty fleets; and
  • dealerships

The Action Plan’s recommendations reflect transportation-focused efforts to combat climate change for the future. By promoting the adoption by mainstream consumers of ZEVs, which include plug-in hybrid, battery electric, and hydrogen fuel cell vehicles, the goal is to achieve “near-and long-term” greenhouse gas (GHG) reduction targets that have been implemented in various states.

I. Background

The Multi-State ZEV Task Force includes nine states—California, Connecticut, Maryland, Massachusetts, New York, Oregon, Rhode Island, Vermont, and New Jersey that collectively comprise one-third of the U.S. vehicle market. The Task Force was formed in 2013 under a Memorandum of Understanding (MOU) signed by the Governors of California and the initial seven states that adopted California’s ZEV regulations, which are more stringent than the federal vehicle emission standards. New Jersey joined the Task Force in 2018.

The Multi-state ZEV Task Force released its first Action Plan in May 2014 to support the implementation of the states’ new ZEV regulations. The 2014 Action Plan focused on eleven key initiatives, including adopting financial incentives and education programs that have been implemented by various states.

II. The New Action Plan

The new Action Plan builds on the early successes of the 2014 Action Plan by “redoubling state efforts” and “establishing clear priorities for action for the next critical period in the evolution of the market.” Promoting transportation electrification promises to deliver “substantial energy security and economic benefits as cleaner electricity derived from renewable energy and other low-carbon sources replaces imported gasoline and diesel as transportation fuels.”

Among the 80 ideas, key recommendations from the five priority areas include the following:

Consumer Education and Outreach

  • States should support local grass roots efforts to increase consumer experience with ZEVs, such as ride and drives, rental programs, and pop-up ZEV show rooms.
  • Automakers and dealers should increase brand-specific advertising as new ZEV models become available and fund brand-neutral consumer awareness campaigns, such as Drive Change. Drive Electric.
  • Utilities should include funding for consumer education in transportation electrification program proposals submitted to public utility commissions (PUCs).

Charging and Hydrogen Fueling Infrastructure

  • States should develop plans to guide the deployment of electric vehicle supply equipment (EVSE) to support the broad portfolio of charging needs at home, work, around town, at destination locations, and on the road.
  • States should open PUC proceedings to consider alternative demand charge rate designs, waivers or other options for public charging to provide the least burdensome price signals to EVSE hosts.

Consumer Purchase Incentives

  • States should collaborate with automobile manufacturers, dealers, utilities, other parties to advocate for the continued availability of federal tax credits.
  • States should continue to offer and promote existing state rebates, income tax credits, and sales and excise tax exemptions.
  • Automakers and dealers should continue to engage with state and local ZEV and EVSE incentive programs regarding monetary and non monetary incentives such as preferential parking, discounted tolls, and High Occupancy Vehicle lane access.

Light-Duty Fleets

  • States should advance the electrification of public fleets by offering financial incentives to state and local government fleets for acquisition of ZEVs and EVSE.
  • Fleet Manager Associations should provide information and guidance to members about the benefits of ZEVs and charging/fueling technologies and costs through ZEV-focused information sessions and trainings.


  • States should highlight dealerships with successful ZEV practices and engage with dealers through the Task Force Dealership Workgroup to identify collaboration opportunities that could support sales.
  • Dealerships and dealership associations should commit to increasing ZEV sales by identifying and adopting best practices to overcome the challenges of selling ZEVs to new consumers.

The full Multi-State Zev Action Plan is provided here. K&L Gates lawyers will continue to monitor these developments as the United States rolls to a cleaner transportation future.

Oregon Lawmakers Consider Carbon Pricing Legislation

By Ankur K. Tohan, Alyssa A. Moir, Buck B. Endemann, Christina A. Elles

This is the second installment in the West Coast Carbon Policy Update — Three Part Series, which will examine carbon policies along the West Coast in Washington, Oregon, and California.

On March 28, 2017 President Trump signed an executive order instructing the Environmental Protection Agency to withdraw and rewrite the Clean Power Plan, but lawmakers in Oregon are pushing ahead with statewide efforts to reduce greenhouse gas (“GHG”) emissions. Oregon lawmakers are currently considering several carbon pricing bills — including a cap-and-trade program, a carbon tax, a cap-and-fee program, and a GHG emission rule issued by the state’s environmental agency — that will add a pricing component to the state’s GHG goals.

To read the full alert on K&L Gates HUB, click here.


The Washington State Department of Ecology Reissues Clean Air Rule

By Ankur Tohan, Alyssa Moir and Alyssa M. Fritz

On June 1 the Washington State Department of Ecology (“Ecology”) reissued a draft Clean Air Rule (“CAR”). A prior iteration of the rule was filed on January 6, 2016, but was withdrawn by Ecology to address and incorporate feedback from stakeholders and covered parties. Ecology anticipates that the revised CAR will be finalized sometime in September 2016; comments on the proposed rule are due by July 22, 2016.

Like the withdrawn rule, the intent of the reissued CAR is to establish emission standards to cap and reduce greenhouse gas (“GHG”) emissions from in-state stationary sources, petroleum product producers and importers, and natural gas distributors. The CAR would cover two-thirds of all in-state GHG emissions, including both public and private sector parties.

According to Ecology, some of the changes in the reissued rule include “incorporating mechanisms to ensure emissions are reduced while supporting business growth; recognizing early actions already taken to reduce emissions; and an effective pathway for power plants.”

Reactions to the reissued CAR have been mixed. Some stakeholders have raised concerns about the costs of implementing the program and the potential costs to energy customers. Others have asserted that the proposal would not sufficiently reduce emissions to protect the environment.

Below, we address what parties could be affected by the reissued rule, how the rule would operate, and the different options for compliance. We also outline the significant changes and significant omissions in the reissued CAR as well as the key dates for stakeholder input and covered party compliance.

Click here to read the full alert on K&L Gates HUB.

Update on EPA’s Clean Power Plan

Late last month, the United States Environmental Protection Agency (“EPA”) submitted briefs to the United States Court of Appeals for the District of Columbia in support of its Clean Power Plan (“CPP”) rule.  The agency’s briefs were filed in response to a challenge against the rule brought by industry groups and states (“Petitioners”).  Amici curiae briefs on both sides of the issue were also filed by several cities, states, advocacy groups, and companies.  The D.C. Circuit will hear oral arguments on the legality of the CPP in June.  In February, the United States Supreme Court stayed the implementation of the CPP until the resolution of these legal challenges.

Since the stay of the CPP, states have operated under uncertainty and have taken different approaches to planning for the potential implementation or invalidation of the rule.

This alert provides a timeline of the events leading to the current status of the CPP, a summary of the different legal arguments in front of the D.C. Circuit, and a brief overview of different state approaches and strategies to plan for the potential implementation of the CPP.

Read the full alert on K&L Gates HUB.

High Court Grants Stay of Clean Power Plan

On February 9, 2016, in an historic and unprecedented decision, the U.S. Supreme Court blocked the U.S. Environmental Protection Agency (“EPA”) from implementing the Clean Power Plan (“CPP”) while the rule is challenged in lower courts. The decision is a victory for twenty-nine states and state agencies, along with several industry and trade groups (the “Petitioners”), who appealed the D.C. Circuit’s January 21, 2016 decision not to stay the CPP.

The Petitioners argued to the Supreme Court that the EPA does not have the Clean Air Act authority to implement the CPP, which they assert would reorganize the entire electric power sector of the U.S. economy. The petitioners persuaded the U.S. Supreme court that there was a reasonable probability that four justices would agree to hear the case, that there was a fair prospect that the majority of the court would find that the CPP was unlawful, and that irreparable harm would have resulted from the denial of the stay.

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FERC Issues Staff White Paper on Guidance Principles for Clean Power Plan Modeling; Suggests Stakeholder Engagement to Consider Reliability Issues

On January 19, 2016, the Federal Energy Regulatory Commission (“FERC”) issued a Staff White Paper[1] outlining four guiding principles to assist transmission planning entities – including regional transmission organizations (“RTOs”), independent system operators (“ISOs”) and electric utilities – in analyzing the Clean Power Plan (“CPP”) promulgated by the U.S. Environmental Protection Agency (“EPA”).[2]  The CPP requires each state to demonstrate that it has considered electric system reliability issues in developing its state emissions reduction plan.  The EPA explained that one particularly effective way for states to make such a demonstration is by consulting with the relevant RTO, ISO, or other transmission planning entities and documenting this consultation process in their state plans.

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Paris Climate Talks Conclude: Key Takeaways from a Critical Meeting

Intense climate negotiations in Paris have now concluded for the 21st “conference of the parties” (or COP-21) under the United Nations Framework Convention on Climate Change. Until quite late in the process, many big-picture questions remained unresolved, including the enforceability of emissions limitations plans under the agreement, compensation for loss, and the target limit for global temperature rise. The resolution of these questions will be summarized below, with initial commentary on the results of the negations and questions going forward.

Leading up to and during the negotiations, media reports reflected optimism among global stakeholders seeking limits to greenhouse gas emissions, and expectations for an historic deal ran high. This ambitious agenda redoubled during the talks themselves, when low-lying island nations and scientists sought to tighten temperature increase targets from 2 degrees Celsius to 1.5 degrees Celsius. As discussed below, while the agreement reflects a new level of commitment to cutting carbon, the high expectations were not met entirely in the final accord.

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Greenhouse Gas Regulation in Washington: What the Clean Power Plan and Washington Clean Air Rule Mean for the State

K&L Gates attorneys Ankur K. Tohan, Daniel C. Kelly-Stallings, and Alyssa A. Moir recently penned an article for the Environmental and Land Use Law Section of the Washington State Bar Association (WSBA) analyzing greenhouse gas regulation in Washington. Their article, “Greenhouse Gas Regulation in Washington: What the Clean Power Plan and Washington Clean Air Rule Mean for the State,” is available from the WSBA website.

Clean Power Plan Legal Battles Commence while EPA Fine-Tunes Incentives and Enforcement Mechanisms

EPA published the Clean Power Plan (“CPP”) regulations in the Federal Register late last month. The CPP is the landmark climate change rule championed by the Obama Administration that requires reductions in greenhouse gas emissions from existing power plants nationwide. Almost immediately, opponents lodged petitions seeking review of the rule, with some petitioners also seeking a stay of the rule.

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