Earlier this month, the Obama administration released its final Clean Power Plan (“Plan”), a comprehensive set of rules and standards geared toward decreasing carbon emissions from coal- and gas-fired power plants and combatting global warming. The Clean Power Plan focuses on the nation’s largest carbon emitter, the electricity sector, which in 2013 accounted for an estimated 31% of U.S. greenhouse gas emissions.  New York Governor Andrew Cuomo has expressed strong support for the Plan, stating, “The President’s Clean Power Plan is a visionary step forward for our nation, and it provides a robust and equitable approach to reducing America’s carbon pollution. Here in New York, we have embraced the challenge of climate change with a commitment to cut harmful carbon pollution by 40 percent by 2030, and I look forward to working alongside our partners in the federal government to bring about a cleaner, safer future for all.”  New York must submit a strategy to implement the Clean Power Plan to EPA by September 16, 2016.

Under the Plan, each state will be responsible for achieving individualized carbon-reduction goals by 2030. Each goal is based on energy production, rather than energy consumption, and in consideration of the great variety of energy sources utilized across the country, states will have the opportunity to develop individualized plans in order to best implement the standards and to achieve the necessary reduction in carbon emissions. In order to ensure that the new standards do not negatively impact electricity reliability, each final plan must include a demonstrated consideration of its potential impact on reliability. In addition, EPA believes that both the 15-year timeframe for the states to develop and implement the necessary changes, in addition to the permitted flexibility in implementing the plans, provide ample opportunity for states to ensure that any changes do not impair electricity reliability. EPA has described the Plan as both flexible and fair, and estimates that by 2030, the Clean Power Plan will reduce the power sector’s carbon pollution by 32%  below 2005 levels.

Since the release of the Clean Power Plan, critics have questioned both its potential effectiveness and its legality. Late last week, a group of state attorneys general filed an emergency petition to delay the effective date of certain rules within the Plan, pending judicial review. The group finds fault with provisions of the Plan that require submissions of initial state implementation plans by September 6, 2016, rather than allowing each state a certain amount of time to submit plans following the publication of the final rule in the Federal Register. Failure to submit an approved plan by the deadline will result in the implementation of a federal plan. Fifteen states have also requested a stay of the final rule, stating that the EPA has intentionally delayed publishing released rules in the past.