Bevin appointee goes after EPA climate regs

• Until recently, top environmental official was a board member of the Kentucky Coal Association.
• State backtracks on claim that Kentucky was given most stringent carbon dioxide requirements.
• Environmental advocate acknowledges Kentucky may have a solid legal point to make on EPA process.
• Clean Power Plan probably headed to U.S. Supreme Court, legal expert says.

Kentucky's new top environmental regulator, recently retired from working for the coal industry, has filed a challenge to the U.S. Environmental Protection Agency's landmark Clean Power Plan, the nation's first rules to curb power plant pollution blamed for causing climate change.

Energy and Environment Cabinet Secretary Charles Snavely, a former Arch Coal executive, sent a petition to the EPA on Monday calling for reconsideration of the carbon dioxide rules. On behalf of the new Bevin administration, Snavely writes that the EPA changed so much of the Clean Power Plan between its initial proposal and final rules that Kentucky was unable to effectively participate in the federal agency's public comment period.

Specifically, the challenge states, the public was not able to object to provisions included in the final plan that were not part of the initial proposal.

"The EPA should convene a proceeding for reconsideration of the rule ... so that the public has the opportunity to make meaningful comment on these issues," Snavely wrote.

The Energy and Environment Cabinet also claims that the EPA failed to do a state-by-state cost-benefit analysis and that its state-by-state targets were set without considering fiscal consequences.

The EPA has received Kentucky’s petition and will review it, an agency spokeswoman said, calling it a "routine process outlined in the Clean Air Act. EPA has received a number of petitions asking for reconsideration of various aspects of the Clean Power Plan."

Environmental changes coming to Frankfort

Louisville environmental attorney Tom FitzGerald, director of the Kentucky Resources Council, agreed that there was a big difference between the proposed and final rules and that the cabinet may have a legitimate legal point to make with its petition to the EPA. But he also said EPA attorneys clearly felt they were following the requirements of the Clean Air Act and that, overall, he believes the Clean Power Plan can survive a legal challenge.

Eventually, he said, the public comment question will probably be for a judge to answer as part of other litigation against the rule.

Ultimately, this rule likely will end up before the U.S. Supreme Court, as have many other major Clean Air Act edicts, FitzGerald said, adding that it is rare for the courts to put a rule on hold during legal wranglings. "Assuming no stay is issued ... the final rules have and will continue to affect current decisions by utilities and investors" regarding reductions in carbon emissions over the next few years, he said.

President Barack Obama has made the Clean Power Plan a central provision in his climate agenda, intending to show the world the U.S. is committed to leading global efforts to address climate change. Earlier this month, 195 nations agreed at a United Nations conference in Paris to work to slow global warming.

But some two dozen states, including Kentucky and Indiana, are suing the EPA to challenge the power plant regulations, which seek an overall 32 percent reduction in carbon emissions by 2030. Each state has its own targets and is responsible for coming up with a plan to meet them.

The new Kentucky petition is part of the backlash. It claims Kentucky was given "the lowest emission rate in the country." But when asked by The Courier-Journal for documentation for that claim, cabinet spokesman Dick Brown acknowledged that sentence "was not worded properly."

Other states, in fact, have lower, more stringent targets than Kentucky.

The Energy Cabinet's point person on the Clean Power Plan, John Lyons, said that nevertheless, the EPA's requirements drastically changed from the proposal to the final rule and that the point of the petition is that the EPA methodology in calculating state requirements changed so drastically that state officials never had the opportunity to weigh in.

The Union of Concerned Scientists has studied each states’ progress toward complying with the rule and figures that Kentucky is already either 25 percent or 31 percent toward meeting the 2030 requirements, depending on available compliance options. The group estimates that Kentucky is either 51 percent or 72 percent toward meeting interim goals in 2023.

Until this month, Snavely was a board member of the Kentucky Coal Association, which has argued to defy the EPA's climate agenda.

The coal association president, Bill Bissett, said Tuesday that the cabinet is right to file its petition objecting to what he called "a very unfair process" by the EPA. In addition to any legal ramifications, he said, "there's a need to show the EPA has been a bad actor."

Bissett said Snavely will bring a "pro-business acumen" to the top environmental position in state government while being fair to all sides.

Senate Majority Leader Mitch McConnell, R-Ky., also has called on states to defy the EPA and hold off on developing a compliance plan.

During his gubernatorial campaign, Bevin pledged to resist enacting any Kentucky obligations under the Clean Power Plan, and his platform also promised to "not enforce" any federal regulations that he considers economically destructive to the state.

But FitzGerald has said that if Kentucky doesn't come up with its own compliance plan, the federal government would be able to impose its own on Kentucky.

Brown said Tuesday that cabinet officials have not received any new direction on whether to proceed with developing a compliance plan from Snavely, who was appointed by Bevin on Dec. 7.

He said officials with former Gov. Steve Beshear's administration submitted a transition document that dealt in part with the Clean Power Plan. Cabinet officials have denied a request by The Courier-Journal for a copy of that transition document, declaring it to be protected because it's considered a draft.

In his announcement of the Snavely appointment, Bevin praised the former coal executive's "professionalism and leadership experience" and said "Charles understands the balance we must maintain between the commonwealth's need for low-cost, reliable energy and the need for clean water and air for all Kentuckians."

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Reach reporter James Bruggers at (502) 582-4645 or at jbruggers@courier-journal.com.