American Oil and Gas Reporter - September 2015 - 158

scientific basis for that standard, adding,
"It appears the standard is the right standard because the agencies say it is."
In his decision, Erickson stated the
North Dakota group had demonstrated
that its members would face irreparable
harm without the injunction, explaining
that under the Clean Water Rule, states
would lose their sovereignty over intrastate
waters, which then would be subject to
the Clean Water Act. He cited government
estimates that the states would see as
much as a 4.65 percent decrease in stateregulated waters that would be subject to
federal control.
In addition to the loss of sovereignty,
the states would suffer unrecoverable
monetary losses, the ruling states, including
direct losses incurred by expenditures to
map and survey portions of the states,
and indirect losses such as lost tax revenue
while projects were stalled pending mapping. Erickson pointed out Wyoming asserted it would be required to bear the
costs of additional Clean Water Act certifications, including expanded permitting,
oversight, and technical and legal analysis
for reclamation and development projects,
while North Dakota projected expenses
resulting from jurisdictional studies required for every proposed natural gas,
oil or water pipeline project.
"These losses are unrecoverable economic losses because there is neither an
alternative source to replace the lost revenues nor a way to avoid the increased
expenses," Erickson wrote. "The states
will suffer irreparable harm in the absence
of a preliminary injunction."
The judge complained that EPA and
Army Corps failed to produce the full
administrative records behind the rulemaking process, leading the court to rely
on a handful of documents and memoranda. "A review of what has been made
available reveals a process that is inexplicable, arbitrary, and devoid of a reasoned process," he wrote.
EPA and the Army Corps also changed
the final definition of "neighboring" in
the rule such that an interested person
would not recognize it from its definition
as contained in the proposed rule, meaning
the Clean Water Rule is not a "logical
outgrowth" of the proposed rule, which
a violation of federal code, Erickson said.
When the agencies published the final
rule, they materially altered it by replacing
ecological and hydrological concepts in
the proposed rule with geographical distances that are different in degree and
kind, and wholly removed from the original concepts, the judge detailed.
❒

Obama Clean Power Rule Seeks
32 Percent Cut In CO2 Emissions
WASHINGTON-President Barack
Obama unveiled his program to cut U.S.
carbon emissions from power generating
facilities on Aug. 3. His Clean Power
Plan seeks to reduce emissions by 32
percent below 2005 levels by 2030.
At the same time the Clean Power
Plan was launched, the Environmental
Protection Agency issued final carbon
emission standards for new, modified
and reconstructed power plants, and proposed a federal plan and model rule for
states implementing the Clean Power
Plan.
The president's statement announcing
the Clean Power Plan's final version says
the program will reduce emissions of criteria pollutants as well, including sulfur
dioxide and nitrogen oxide. Although the
plan was announced and a preliminary
draft printed in the Federal Register, as
of mid-August, the definitive version had
yet to be published.
According to the White House, the
plan's emission reductions will provide
climate benefits of $20 billion and health
benefits of $14 billion to $34 billion.
States must submit a final plan, or an
initial plan with an extension request, by
Sept. 6, 2016, and final completed plans
by Sept. 6, 2018, EPA says.
"We are proud to finalize our Clean
Power Plan," says EPA Administrator
Gina McCarthy. "The United States is
leading by example, showing the world
that climate action is an incredible economic opportunity to build a stronger
foundation for growth."
McCarthy adds that feedback received
during the plan's public comment period,
which involved more than 4.3 million
comments and hundreds of meetings with
stakeholders, will help states customize
their programs in ways that make sense
for their communities, businesses and
utilities.
State Targets
Under the Clean Power Plan, EPA
says it will establish interim and final
carbon dioxide emission performance
rates for two subcategories of fossilfueled electric generating stations: those
fired by coal or oil, and natural gas-fired
combined cycle generating units. States
could implement those targets in three
ways:
* A rate-based goal measured in
pounds per megawatt hour, where demand-side efficiency gains are counted

158 THE AMERICAN OIL & GAS REPORTER

toward meeting emission performance
rates;
* A mass-based goal measured in
total short tons of CO2; or
* A mass-based goal with a new
source complement measured in total
short tons of CO2.
States are required to develop and implement plans that ensure power plants
within their borders-either individually,
together or in combination with other
measures-achieve the interim CO2 emission performance rates from 2022 to
2029, and the final rates, rate-based goals
or mass-based goals by 2030, the agency
describes.
According to EPA, states may choose
between two plan types to meet their
goals:
* An emission standards plan, which
includes source-specific requirements ensuring all affected power plants in the
state meet their required emission performance rates or the state-specific rateor mass-based goal; or
* A state measures plan that includes
a mixture of measures implemented by
the state, such as renewable energy standards or programs to improve residential
energy efficiency that are not included
as federally enforceable components of
the plan.
The agency points out that state measures, alone or in conjunction with federally
enforceable requirements, must lead to
affected power plants meeting the state's
mass-based goal. In addition, the state
plan must include a backstop of federally
enforceable standards for affected power
plants that meet the emissions guidelines
that will be triggered if the state measures
fail to result in the affected power plants
achieving the required reductions on
schedule.
The final rule also allows states the
option to work with their counterparts
on multistate approaches, such as emissions trading. Those would allow their
power plants to integrate their interconnected operations within their operating
systems and their opportunities to address
carbon emissions, EPA says.
In its economic analysis of rule's impact, EPA projects the annual compliance
costs to potentially affected small generating entities in 2030 will be $364 million
under the rate-based approach and $404
million under the mass-based approach.
The agency points out power generating
facilities operating in regulated or cost-
American Oil and Gas Reporter - September 2015

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