Well, that didn’t take long. Within hours of publication of the final rule in the Federal Register last Friday, Oct. 23, a group of 24 states filed suit in the D.C. Court of Appeals against EPA’s Clean Power Plan. Separately, Oklahoma and North Dakota lodged their own legal complaints, bringing the total of states challenging the rule to 26. But a majority of states taking EPA to court does not mean half the country is going to “just say no” to the CPP. Indeed, a number of these states are looking hard at compliance options even as they try to take down the rule. Plus, EPA will have defenders of the Clean Power Plan in court – including AEE.

First of all, in saying that “states” have filed suit against EPA, we’re not necessarily talking about unified entities. In most cases, though not all, it is the Attorney General who takes legal action on behalf of a state government. But it is the Governor, as the boss (and typically, the appointing authority) of the state’s air regulator, who calls the shots on compliance with the federal regulation. Whereas the AG’s role is often defending state agencies in court, the AG is an elected official, and not necessarily even of the same party, let alone of the same mind, as the Governor, and is free to act as he or she chooses.

 When it comes to responding to the Clean Power Plan, we’ve got that in spades. Colorado is a party to the anti-CPP lawsuit, but Gov. John Hickenlooper supports the CPP. He is plowing ahead with his own carbon reduction plan, and his Department of Public Health and Environment has begun to take public input on developing a CPP compliance plan. In Michigan, Gov. Rick Snyder has made it clear that he plans for his state to develop a compliance plan, despite Attorney General Bill Schuette’s bringing the state into the anti-EPA litigation.

In states like Colorado, the discordance is because the Governor and Attorney General disagree about the Clean Power Plan, but in others it’s a matter of practical responsibilities. An AG can go to the legal barricades against EPA, but it’s the executive branch that is under the legal obligation to comply, like the rule or not.

Take West Virginia, where Attorney General Patrick Morrisey has taken the lead in the multi-state lawsuit against EPA. Gov. Earl Ray Tomblin just the other day announced that his state would submit a compliance plan (sub. required). “While I believe there are significant questions regarding the legality of the Clean Power Plan, these new rules have been put into place by the federal regulatory agency,” said Tomblin, in a statement. “Until a final legal decision has been made, we cannot afford to ignore them.”

For many of the states that are suing, the only thing worse than complying with the rule with a compliance plan they develop themselves is having a federal plan imposed on them by EPA. Call it “fear of the FIP,” or Federal Implementation Plan.

“I will tell you that every one of the generators, co-ops and public power authorities in Oklahoma have come to us and said, ‘Please, God, don't let us get FIPed,’” that state’s Secretary of Energy and Environment, Michael Teague, told a conference (sub. required) in Washington, D.C, earlier this week, even though the official stance is that Oklahoma is not going to submit a plan. “We are not going to have a FIP in Oklahoma.”

As a result, the map of states that are suing EPA looks like a checkerboard, when it comes to what they have said they will do while the lawsuits play out. (See map) Indeed, only seven or eight of these states have threatened to “just say no,” while 14 of the 26 have either taken steps to begin the planning process, or have indicated they are considering submitting compliance plans.

In terms of the litigation itself, the business community is choosing up sides, in predictable ways. A set of old-line business groups led by the U.S. Chamber of Commerce has filed suit against EPA over the rule. That suit, which is joined by manufacturing, mining, and petrochemical interests, charges that the Clean Power Plan “is unlawful and a bad deal for America.” Most utilities – those which own power plants being the businesses most directly affected by the rule – have stayed out of the legal battle and focused on analyzing compliance options, but coal-heavy Southern Co. and the national association of rural coops have filed suits, along with the American Public Power Association and the so-called Utility Air Regulatory Group, whose members are not identified.

Among the business groups supporting the Clean Power Plan is AEE, which filed its motion to intervene on Monday. In establishing AEE’s interest in the case, the filing asserted that “AEE and its member companies will benefit directly from the Clean Power Plan” as, it is anticipated, “states and regulated entities will increasingly employ advanced energy products and services to fulfill compliance obligations.” Utilization of these advanced energy technologies will yield lower energy costs, provide more consumer choice, and improve the reliability of our electricity system. AEE has engaged actively in the rulemaking process, submitting comments to the agency, and published numerous reports on aspects of the pending rule.

“As we see it, the Clean Power Plan simply accelerates the technology and market trends that are already moving the country toward an electricity system that is more reliable, clean, affordable, and responsive to customer demands,” said Malcolm Woolf, SVP of Policy and Government Affairs. “Any legal action to impede or delay the implementation of this rule would be disruptive to the market for advanced energy technologies and stifle growth and investment in modernizing the electricity system.”  

In the coming months, AEE will continue to engage in this litigation to preserve the opportunity created by the Clean Power Plan to modernize the electric power system with advanced energy technologies, products, and services. At the same time, AEE, member companies, and state partners across the country will work with state regulators to take advantage of advanced energy to comply with Clean Power Plan requirements at low cost and maximum benefit for customers.