EPA’s Clean Power Plan for Existing Power
Plants: Frequently Asked Questions

James E. McCarthy
Specialist in Environmental Policy
Jonathan L. Ramseur
Specialist in Environmental Policy
Jane A. Leggett
Specialist in Energy and Environmental Policy
Alexandra M. Wyatt
Legislative Attorney
Alissa M. Dolan
Legislative Attorney
January 13, 2016
Congressional Research Service
7-5700
www.crs.gov
R44341


EPA’s Clean Power Plan for Existing Power Plants: Frequently Asked Questions

Summary
Taking action to address climate change by reducing U.S. emissions of greenhouse gases (GHGs)
is among President Obama’s major goals. At an international conference in Copenhagen in 2009,
he committed the United States to reducing emissions of GHGs 17% by 2020, as compared to
2005 levels. At the time, 85 other nations also committed to reductions. In November 2014, the
President set a further goal: a 26% to 28% reduction from 2005 levels to be achieved by 2025—
jointly announced with China’s Xi Jinping, who set a goal for China’s emissions to peak by 2030.
Since U.S. GHG emissions peaked in 2007, a variety of factors—some economic, some the effect
of government policies at all levels—have brought the United States more than halfway to
reaching the 2020 goal. Getting the rest of the way and reducing emissions further by 2025 would
likely depend, to some degree, on continued GHG emission reductions from electric power
plants, which are the largest source of U.S. emissions.
In June 2013, the President released a Climate Action Plan and directed the Environmental
Protection Agency (EPA) to propose standards for “carbon pollution” (i.e., carbon dioxide, the
principal GHG) from existing power plants by June 2014 and to finalize the standards a year later.
EPA proposed the standards on June 2, 2014, and finalized them on August 3, 2015. The rule,
known as the Clean Power Plan, sets individual state targets for average emissions from existing
power plants—interim targets for the period 2022-2029 and final targets to be met by 2030. It sets
a deadline of September 6, 2016, for states to submit implementation plans to EPA detailing how
they will meet these targets.
The rule relies on authority asserted by EPA in Section 111(d) of the Clean Air Act (CAA). This
section has been infrequently used and never interpreted by the courts, so a number of questions
have arisen regarding the extent of EPA’s authority and the mechanisms of implementation. The
rule sets emission rate goals for each state based on its unique circumstances. The goal for each
state was derived from a formula based on three “building blocks”—broad categories that
describe different reduction measures; in general, however, the policies to be adopted to reach
these goals would be determined by the states, not EPA. Each state can reach its goal however it
chooses, without needing to “comply” with the assumptions in its building blocks.
EPA faced a number of issues in developing the regulations:
 How large a reduction in emissions would it require, and by when?
 How would reduction requirements be allocated among the states?
 How much flexibility would the rule give to the states?
 Would it adopt a “mass-based” limit on total emissions or a rate-based (e.g.,
pounds of carbon dioxide per megawatt-hour of electricity) approach?
 What role might state emissions cap-and-trade systems play in meeting the
goals?
 Will compliance be determined only by the actions of individual power plants
(i.e., “inside the fence” actions) or will actions by other actors, including energy
consumers (“outside the fence” actions) be part of compliance strategies?
 What role would there be for existing programs at the state and regional levels,
such as the Regional Greenhouse Gas Initiative (RGGI), and for broader
greenhouse gas reduction programs such as those implemented in California?
This report summarizes the final rule and describes how EPA answered these and other questions.
In addition to discussing details of the rule, the report addresses EPA’s authority under Section
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EPA’s Clean Power Plan for Existing Power Plants: Frequently Asked Questions

111 of the CAA, EPA’s previous experience using that authority, and other background questions.
The report discusses the ongoing litigation in which a number of states and other entities have
challenged the rule, while other states and entities have intervened in support of the rule. It also
discusses challenges to the rule under the Congressional Review Act and other options that
Congress has to influence EPA’s action.
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EPA’s Clean Power Plan for Existing Power Plants: Frequently Asked Questions

Contents
Background ..................................................................................................................................... 1
Q: Why did EPA promulgate this rule? ............................................................................... 1
Q: How much progress has the United States made in reducing GHG emissions? ............ 3
Q: How much does the generation of electricity contribute
to total U.S. GHG emissions? .......................................................................................... 4
Q: What other steps has EPA taken to reduce GHG emissions? ......................................... 4
Statutory Authority .......................................................................................................................... 5
Q: Under what authority did EPA promulgate the CPP rule? ............................................. 5
Q: What does Section 111(d), the authority EPA cites for the CPP, bar EPA from
regulating? ....................................................................................................................... 6
Q: When has EPA previously used its Section 111(d) authority? ....................................... 7
Q: How do the CPP standards for existing power plants relate to EPA’s GHG
standards for new fossil-fueled power plants? ................................................................. 8
Q: How does Section 111 define the term “standards of performance”? ............................ 8
The Final Rule ............................................................................................................................... 10
Q: How does the final rule differ from the proposed rule? ............................................... 10
Q: By how much would the final rule reduce CO2 emissions? ......................................... 10
Q: To whom does the final rule directly apply? ................................................................. 11
Q: What type of facilities are affected by the final rule? ................................................... 11
Q: How many EGUs and facilities are affected by the final rule? .................................... 12
Q: Does the final rule apply to all states and territories? .................................................. 12
Q: What is the deadline for submitting state plans to EPA? ............................................. 12
Q: What are the different options available to states when preparing their state
plans? ............................................................................................................................. 12
Q: Can states join together and submit multi-state plans? ................................................ 13
Q: What are the national CO2 emission performance rates in the final rule? ................... 13
Q: How did EPA establish the national CO2 emission performance rates? ....................... 13
Q: How did EPA calculate the state-specific emission rate targets? ................................. 14
Q: What are the state-specific emission rate targets? ........................................................ 15
Q: How did EPA calculate the state-specific mass-based targets? .................................... 17
Q: What are the state-specific mass-based targets? .......................................................... 17
Q: Does the final rule apply to EGUs on Indian lands? .................................................... 19
Q: Would states and companies that have already reduced GHG emissions receive
credit for doing so? ........................................................................................................ 20
Q: How does EPA’s final rule interact with existing GHG emission reduction
programs in the states, namely the Regional Greenhouse Gas Initiative and
California’s climate policies? ......................................................................................... 21
Q: What role is there for “outside-the-fence” emission reductions? ................................. 21
Q: How would new fossil-fuel fired power plants and their resulting electricity
generation and emissions factor into a state’s emission rate or emission
calculations? .................................................................................................................. 22
Q: What role does nuclear power play in EPA’s final rule? .............................................. 22
Q: What role does energy efficiency play in EPA’s final rule? ......................................... 22
Q: What role does biomass play in EPA’s final rule? ........................................................ 23
Q: What is the Clean Energy Incentive Program? ............................................................ 23
Next Steps...................................................................................................................................... 24
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Q: What are the next steps in the rule’s implementation? ................................................. 24
Q: What incentives are there for early compliance? ......................................................... 25
Q: What happens if a state fails to submit an adequate plan by the
appropriate deadline? ..................................................................................................... 25
Q: What would the proposed FIP require? ........................................................................ 25
Costs and Benefits of the Rule ...................................................................................................... 26
Q: What role did cost play in EPA’s choice of emission standards? ................................. 26
Q: What are EPA’s estimates of the costs of this rule? ...................................................... 27
Q: What other estimates of the CPP’s cost are there? ....................................................... 27
Q: What are the benefits EPA estimates for the CPP? ...................................................... 28
Potential Impacts on the Electricity Sector.................................................................................... 29
Q: How might the CPP impact electricity prices and electricity bills? ............................. 29
Q: How does the CPP address electricity reliability? ....................................................... 29
Q: What types of electricity sectors infrastructure changes might result from the
CPP? .............................................................................................................................. 30
Congressional Review ................................................................................................................... 30
Q: Can Congress use the Congressional Review Act (CRA) to disapprove
the rule? ......................................................................................................................... 30
Q: What happens if the President vetoes a CRA joint resolution of disapproval? ............ 31
Q: What would be the effect of an enacted CRA joint resolution of disapproval? ........... 32
Q: What other steps might Congress take to overturn or modify the rule? ....................... 33
Judicial Review ............................................................................................................................. 34
Q: What parties have joined litigation over the final CPP rule? ....................................... 34
Q: What is the status and timeframe of litigation challenging the final CPP rule,
and will the rule be stayed?............................................................................................ 35
Q: What legal arguments are being made for and against the final CPP rule? ................. 35
Q: Might other litigation affect the final CPP rule? .......................................................... 38
For Further Information ................................................................................................................. 38
Q: Who are the CRS contacts for questions regarding this rule? ...................................... 38

Figures
Figure 1. Percent Change in U.S. Greenhouse Gas (GHG) Emissions, the Economy, and
Population, Since 1990 ................................................................................................................. 3
Figure 2. GHG Emissions from the Electricity Sector .................................................................... 4
Figure 3. U.S. CO2 Emissions from Electricity Generation ........................................................... 11
Figure 4. Electricity Regions in EPA’s Methodology .................................................................... 14

Tables
Table 1. National CO2 Performance Rates .................................................................................... 13
Table 2. State-Specific Emission Rate Baselines (2012), Emission Rate Targets (2030),
and Percentage Reductions Compared to Baselines ................................................................... 15
Table 3. State-Specific 2012 CO2 Emission Baselines and 2030 CO2 Emission Targets .............. 18
Table 4. Emission Rate and Emission Targets for Areas of Indian Country .................................. 19
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EPA’s Clean Power Plan for Existing Power Plants: Frequently Asked Questions


Contacts
Author Contact Information .......................................................................................................... 39

Congressional Research Service

EPA’s Clean Power Plan for Existing Power Plants: Frequently Asked Questions

n August 3, 2015, the Environmental Protection Agency (EPA) promulgated standards for
greenhouse gas (GHG) emissions from existing fossil-fueled power plants under Section
O 111(d) of the Clean Air Act (CAA).1 The rule, known as the Clean Power Plan (CPP),
appeared in the Federal Register on October 23, 2015.2 The rule and various supporting materials
are posted on EPA’s website.3
The agency conducted significant outreach to interested parties both before and after the rule’s
proposal. Before proposal, according to Bloomberg BNA, “Senior Environmental Protection
Agency officials consulted with at least 210 separate groups representing a broad range of
interests in the Washington, DC, area and held more than 100 meetings and events with additional
organizations across regional offices.”4 Despite, or perhaps because of, these outreach efforts,
EPA received more than 4.3 million public comments following the rule’s proposal, the most ever
for an EPA rule.5 The agency continued outreach activities during the public comment period and
before publication of the final rule.
Interest in the rule reflects what is generally conceded to be the importance of its potential effects.
The economy and the health, safety, and well-being of the nation depend on a reliable and
affordable power supply, which many contend would be adversely affected by controls on GHG
emissions from power plants. At the same time, an overwhelming scientific consensus has formed
around the need to slow long-term global climate change. To determine how the rule addresses
these issues, congressional committees asked EPA officials numerous questions about the rule,
and individual Members wrote EPA seeking additional information about the rule’s potential
impacts.6 This congressional interest has continued since the final rule was promulgated.
EPA responded to questions and comments by making numerous changes to the rule between
proposal and promulgation. In order to provide basic information about the rule as promulgated,
this report presents a series of questions and answers.
Background
Q: Why did EPA promulgate this rule?
A: EPA promulgated emissions guidelines to limit carbon dioxide (CO2) emissions from existing
power plants under Section 111(d) of the CAA for a variety of reasons. Some important context
includes the following:

1 42 U.S.C. §7411(d).
2 U.S. EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,”
Final Rule, 80 Federal Register 64661, October 23, 2015.
3 http://www.epa.gov/cleanpowerplan/clean-power-plan-existing-power-plants. EPA also promulgated standards for
new, modified, and reconstructed power plants the same day. These New Source Performance Standards and
supporting materials can be found at http://www.epa.gov/cleanpowerplan/carbon-pollution-standards-final-rule-august-
2015.
4 “EPA Consulted with Hundreds of Groups on Carbon Rule for Existing Power Plants,” Daily Environment Report,
April 8, 2014.
5 More than 34,000 public submissions on the proposal can be viewed at http://www.regulations.gov/
#!docketDetail;D=EPA-HQ-OAR-2013-0602. An interactive map allowing users to search for comments by state
officials can be found at http://bipartisanpolicy.org/energy-map/.
6 See, for example, the letter from a bipartisan group of 47 Senators to EPA Administrator Gina McCarthy, May 22,
2014, at http://www.fischer.senate.gov/public/_cache/files/79d2321e-175c-4456-b4c7-f9b600e15288/5.22.14-senate-
ghg-dear-colleague-letter.pdf.
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 The Supreme Court in Massachusetts v. EPA in 2007 determined that “air
pollutant,” as used in the CAA, covers GHGs.7 EPA thereafter determined that
GHGs are air pollutants that were “reasonably anticipated to endanger both
public health and welfare.”8
 In December 2010, EPA entered into a settlement agreement to issue New Source
Performance Standards (NSPSs) for GHG emissions from electric generating
units (EGUs) under Section 111(b) of the CAA and emission guidelines under
Section 111(d) covering existing EGUs.9 As discussed further below,10 EPA
finalized NSPSs for GHG emissions from new, modified, and reconstructed
fossil-fuel-fired EGUs at the same time as the CPP.11
 In the context of U.S. commitments under a 1992 international treaty, the United
Nations Framework Convention on Climate Change (UNFCCC), President
Obama pledged in 2009 to reduce U.S. GHG emissions by 17% below 2005
levels by 2020 and by 80% by 2050.12 In November 2014, President Obama
announced an additional interim goal to reduce U.S. GHG emissions by 26%-
28% below 2005 levels by 2025, in the context of negotiations toward a 2015
agreement applying to all countries to address climate change beyond 2020.13 In
December 2015, delegations from 195 nations adopted an agreement in Paris.
Under the Paris Agreement, nations that become parties will be legally bound to
submit GHG emission reduction pledges but not to the quantitative targets
themselves.14
Simultaneously with President Obama’s November 2014 announcement, China’s President Xi
Jinping announced a voluntary target to “peak” China’s CO2 emissions by 2030 and increase its
use of non-fossil energy to around 20% by 2030. The European Union is “on track” to reach its
target of 20% below 1990 levels by 2020 and has pledged to reduce its GHG emissions to at least
40% below 1990 levels by 2030.

7 Massachusetts v. EPA, 549 U.S. 497 (2007), actually involved GHG emissions from motor vehicles, not power plants.
In 2011, however, the Court explicitly ruled that “air pollutant” includes GHGs when applied to power plants under
Section 111. American Elec. Power Co., Inc. v. Connecticut, 131 S. Ct. 2527, 2537-38 (2011).
8 See U.S. EPA, “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the
Clean Air Act,” Final Rule, 74 Federal Register 66496, December 15, 2009. EPA’s “endangerment finding” was
upheld by the Supreme Court in Util. Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014).
9 See Settlement Agreement Between State of New York, et al., and U.S. EPA, December 23, 2010, at
http://www2.epa.gov/sites/production/files/2013-09/documents/boilerghgsettlement.pdf; CRS Report R41103, Federal
Agency Actions Following the Supreme Court’s Climate Change Decision in Massachusetts v. EPA: A Chronology
, by
Robert Meltz, p. 7.
10 See below, “Q: How do the CPP standards for existing power plants relate to EPA’s GHG standards for new fossil-
fueled power plants?”

11 U.S. EPA, “Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed
Stationary Sources: Electric Utility Generating Units,” Final Rule, 80 Federal Register 64509, October 23, 2015. As
noted in preamble to this rule, EPA first proposed a New Source Performance Standard for GHG emissions from new
fossil fuel-fired EGUs in April 2012; it withdrew that proposal and issued a new proposal in January 2014.
12 See CRS Report R40001, A U.S.-Centric Chronology of the United Nations Framework Convention on Climate
Change
, by Jane A. Leggett; and CRS Report R43120, President Obama’s Climate Action Plan, coordinated by Jane
A. Leggett.
13 See CRS In Focus IF10239, President Obama Pledges Greenhouse Gas Reduction Targets as Contribution to 2015
Global Climate Change Deal
, by Jane A. Leggett.
14 See CRS Insight IN10413, Climate Change Pact Agreed in Paris, by Jane A. Leggett.
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EPA’s Clean Power Plan for Existing Power Plants: Frequently Asked Questions

Q: How much progress has the United States made in reducing
GHG emissions?

A: Measuring whether progress has been made in reducing U.S. GHG emissions depends on the
base year chosen for comparison. In 2013, U.S. GHG emissions were 6,673 million metric tons
(mmt) of CO2-equivalent (CO2e)15—about 6% above 1990 emission levels. While higher than
1990 levels, emissions in 2013 were 9% below GHG emission levels in 2005 and more than
halfway toward meeting President Obama’s pledge to reduce U.S. GHG emissions to 17% below
2005 levels by 2020. U.S. GHG emissions peaked in 2007 at 7,400 mmt CO2e.16
As shown in Figure 1, during the period from 1990 to 2013, U.S. economic activity, measured as
gross domestic product (GDP, adjusted for inflation), rose 75% while population increased 26%.17
Figure 1. Percent Change in U.S. Greenhouse Gas (GHG) Emissions,
the Economy, and Population, Since 1990

Source: CRS figure using GHG emissions data from Environmental Protection Agency, Inventory of Greenhouse
Gas Emissions and Sinks: 1990-2013
, EPA 430-15-004, April 15, 2015; and GDP and population data from U.S.
Bureau of Economic Analysis, National Economic Accounts, “Table 7.1. Selected Per Capita Product and Income
Series in Current and Chained Dol ars,” accessed May 27, 2014.

15 EPA estimates and reports emissions of six GHGs: CO2, methane, nitrous oxide, hydrofluorocarbons (HFCs),
perfluorocarbons (PFCs) and sulfur hexafluoride. CO2-equivalents result from weighting the mass of emissions of a
GHG by its effect, relative to the effect of CO2, on radiative forcing of the climate system over a specified time period
(usually 100 years). Using this method, gases of different atmospheric lifetimes and potencies can be compared or
added. Various assumptions affect the relative warming potential of different GHG compounds.
16 Emissions data are from EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2013, April 2015, p.
ES-4, http://www3.epa.gov/climatechange/ghgemissions/usinventoryreport.html.
17 Ibid., p. ES-24. For a further discussion, see CRS Report R43795, U.S. Greenhouse Gas Emissions: Recent Trends
and Factors
, by Jonathan L. Ramseur.
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Notes: GDP, or “gross domestic product,” is one measure of national economic activity. The six GHGs for
which emissions are estimated are carbon dioxide, methane, nitrous oxide, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
Q: How much does the generation of electricity contribute
to total U.S. GHG emissions?

A: The U.S. electricity generation sector18 contributes the largest percentage of U.S. GHG
emissions, accounting for about 31% of all U.S. GHG emissions in 2013.19 As illustrated in
Figure 2, GHG emissions from electricity generation increased between 1990 and 2007,
decreased through 2012, and increased slightly (less than 1%) in 2013.
In its 2015 Annual Energy Outlook reference case scenario, the U.S. Energy Information
Administration (EIA) projected CO2 emissions from electricity generation to increase by 3.5%
from 2012 to 2020, assuming no further regulatory actions.20 Presumably, EPA’s regulations for
power plants will lower any future EIA projections.
Figure 2. GHG Emissions from the Electricity Sector
1990-2013

Source: Prepared by CRS, data from EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2013, April
2015.
Q: What other steps has EPA taken to reduce GHG emissions?
A: Prior to the promulgation of this rule, EPA had already promulgated GHG emission standards
for light-duty and medium- and heavy-duty vehicles, using its authority under Section 202 of the
CAA.21 Light-duty vehicles (cars, SUVs, vans, and pickup trucks) and medium- and heavy-duty

18 Other sectors include transportation, industrial, commercial, and residential.
19 EPA, “U.S. Greenhouse Gas Inventory Reports:1990–2013,” http://www3.epa.gov/climatechange/ghgemissions/
usinventoryreport.html.
20 According to EIA, “the AEO2015 projections are based generally on federal, state, and local laws and regulations in
effect as of the end of October 2014.” EIA, Annual Energy Outlook 2015, Table 18, April 2015, http://www.eia.gov/
forecasts/aeo/tables_ref.cfm.
21 See CRS Report R40506, Cars, Trucks, and Climate: EPA Regulation of Greenhouse Gases from Mobile Sources, by
(continued...)
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vehicles (including buses, heavy trucks of all kinds, and on-road work vehicles) are collectively
the largest emitters of GHGs other than power plants. Together, on-road motor vehicles accounted
for about 22% of U.S. GHG emissions in 2012.22
GHG standards for light-duty vehicles first took effect for Model Year (MY) 2012. Allowable
GHG emissions will be gradually reduced each year from MY2012 through MY2025. In
MY2025, emissions from new vehicles must average about 50% less per mile than in MY2010.
The standards for heavier-duty vehicles began to take effect in MY2014. They will require
emission reductions of 6% to 23%, depending on the type of engine and vehicle, when fully
implemented in MY2018. A second round of standards, to address MY2019 and later medium-
and heavy-duty vehicles, was proposed on June 19, 2015.23
The promulgation of standards for motor vehicles also triggered Clean Air Act requirements that
new major stationary sources of emissions (power plants, refineries, etc.) obtain permits for their
GHG emissions, and install the Best Available Control Technology, as determined by state and
EPA permit authorities on a case-by-case basis, prior to construction. The Supreme Court upheld
that position in June 2014, provided that the sources were already required to obtain permits for
other conventional pollutants.24
The GHG permitting requirements for stationary sources have been in place since 2011, but were
limited by EPA’s “Tailoring Rule” to the very largest emitters—about 200 facilities, as of mid-
2014. The Court’s June 2014 decision invalidated the Tailoring Rule, but found that EPA could
limit GHG permit requirements to “major” facilities, so-classified as a result of their emissions of
conventional pollutants. In so doing, the Court limited the pool of potential GHG permittees to a
number similar to what the Tailoring Rule would have provided.
Statutory Authority
Q: Under what authority did EPA promulgate the CPP rule?
A: EPA cites Section 111(d) of the CAA25 for its authority to promulgate the CPP.26 Section
111(d) requires EPA, among other things, to issue regulations providing for states to submit plans
to EPA to impose “standards of performance” for existing stationary sources for any air pollutant
that meets certain criteria. The first criterion is that the air pollutant must not already be regulated
under certain other CAA provisions,27 which are discussed further below. The second criterion is
that CAA Section 111(b) NSPSs apply to the source category for the air pollutant.28 EPA finalized

(...continued)
James E. McCarthy and Brent D. Yacobucci; and CRS Report R42721, Automobile and Truck Fuel Economy (CAFE)
and Greenhouse Gas Standards
, by Brent D. Yacobucci, Bill Canis, and Richard K. Lattanzio.
22 EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2013, pp. 3-18 to 3-22.
23 The proposed rule appeared in the Federal Register on July 13, 2015: U.S. EPA and U.S. Department of
Transportation, “Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and
Vehicles—Phase 2,” Proposed Rule, 80 Federal Register 40138, July 13, 2015.
24 Utility Air Regulatory Group vs. Environmental Protection Agency, 134 S. Ct. 2427 (2014).
25 42 U.S.C. §7411(d).
26 See EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,”
Final Rule, 80 Federal Register 64661, 64663-69, 64697, 64700-36, 64751-79, 64783-86, 64811-816, 64826, 64835-
44, 64853-76, 64881-82, 64926, 64942, October 23, 2015.
27 42 U.S.C. §7411(d)(i).
28 42 U.S.C. §7411(d)(ii). CAA Section 111(b), 42 U.S.C. §7411(b), requires EPA to issue NSPSs for any stationary
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Section 111(b) NSPSs for new, modified, or reconstructed power plants for CO2 when it issued
the CPP rule.29 EPA often refers to Section 111(d) regulations as “emission guidelines.”30
Q: What does Section 111(d), the authority EPA cites for the CPP, bar EPA from
regulating?

A: CAA Section 111(d) bars EPA from regulating an air pollutant pursuant to Section 111(d) if the
air pollutant is already regulated as a criteria pollutant under a National Ambient Air Quality
Standard (NAAQS) under CAA Section 108 or, per EPA’s interpretation, as a hazardous air
pollutant (HAP) under CAA Section 112.31 CO2 is not regulated as a criteria pollutant or a HAP
under either of these provisions.
Because the House and Senate passed different versions of CAA Section 111(d) in the 1990 CAA
amendments, controversy exists over EPA’s authority per the Section 112 criterion.32 Under the
House’s provision, CAA Section 111(d)(1)(A)(i) requires EPA to issue a rule under which each
state shall submit to EPA a plan adopting standards of performance for any air pollutant that “is
not included on a list published under section 108(a) or emitted from a source category which is
regulated under section 112.... ”33 Because EPA regulates power plants under Section 112 for
HAP,34 some have argued that EPA is barred from regulating power plants under Section 111(d)
for CO2, although CO2 is not regulated as a HAP under Section 112.35
In the final CPP rule, EPA addressed this issue, finding the CAA Section 112 exclusion to “not
bar the regulation under CAA section 111(d) of non-HAP from a source category, regardless of
whether that source category is subject to standards for HAP under CAA section 112.”36
Describing the House amendment as ambiguous,37 EPA stated that the “sole reasonable”

(...continued)
source category on an EPA-maintained list of source categories that “cause ... or contribute ... significantly to, air
pollution which may reasonably be anticipated to endanger public health or welfare.”
29 EPA, “Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary
Sources: Electric Utility Generating Units,” Final Rule, 80 Federal Register 64509, October 23, 2015.
30 See, for example, ibid. (passim); 40 C.F.R. subparts C, Cc, Cd, Ce, UUUU.
31 The CAA regulates emissions from stationary sources in multiple ways, three of which are relevant here. The first
way is by NAAQSs, reserved for harmful but not extremely hazardous pollutants from “numerous or diverse mobile or
stationary sources.” CAA §108(a)(1)(B), 42 U.S.C. §7408(a)(1)(B). NAAQSs are implemented by source-specific
emission limits imposed by states in “state implementation plans.” CAA §110, 42 U.S.C. §7410. The second way is by
federally prescribed national emission standards for hazardous air pollutants, that is, particularly harmful pollutants.
CAA §112, 42 U.S.C. §7412. And the third, of interest here, is by federally prescribed standards of performance for
new stationary sources. CAA §111, 42 U.S.C. §7411.
32 See below, “Q: What legal arguments are being made for and against the final CPP rule?” in the Judicial Review
section.
33 P.L. 101-549, §108(g), 104 Stat. 2399, 2467 (1990), codified at 42 U.S.C. §7411(d)(1)(A)(i).
34 EPA has regulated HAP from power plants under CAA Section 112 as part of its mercury and air toxics standards
(MATS). The Supreme Court held that EPA’s promulgation of the MATS rule was unlawful for failure to properly
consider costs at the threshold stage of determining whether such regulation was “appropriate and necessary.”
Michigan v. EPA, 135 S. Ct. 2699, 2707-2711 (2015). It remanded the case to the court of appeals, which remanded the
MATS rule without vacatur to EPA to make the additional findings required by the Supreme Court. White Stallion
Energy Ctr. LLC v. EPA, No. 12-1100, order (D.C. Cir. December 15, 2015) (per curiam).
35 See below, “Q: What legal arguments are being made for and against the final CPP rule?”
36 EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,”
Final Rule, 80 Federal Register 64711, October 23, 2015.
37 Ibid., 64712-64714.
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interpretation is that “the phrase ‘regulated under section 112’ refers only to the regulation of
HAP emissions. In other words, the EPA’s interpretation recognizes that source categories
‘regulated under section 112’ are not regulated by CAA section 112 with respect to all pollutants,
but only with respect to HAP.”38
In making this argument, EPA also cited the Senate’s 1990 amendment to CAA Section
111(d)(1)(A)(i), which is published in the U.S. Statutes at Large but not in the U.S. Code.39 The
Senate’s amendment excludes from Section 111(d) regulation any air pollutant “included on a list
published under section 108(a) or 112.... ”40 As such, the Senate language excludes air pollutants
regulated under Section 112, rather than source categories, from Section 111(d) regulation, which
is consistent with EPA regulating power plants for CO2 under Section 111(d).
Q: When has EPA previously used its Section 111(d) authority?
A: An analysis by the American College of Environmental Lawyers observed that since the
1970s, EPA has promulgated emission guidelines under Section 111(d) of the CAA on seven
occasions.41
EPA’s 2005 Clean Air Mercury Rule (CAMR) delisted coal-fired electric utility steam generating
units from Section 112 of the CAA and, instead, established a cap-and-trade system for mercury
under Section 111(d);42 however, the U.S. Court of Appeals for the D.C. Circuit vacated CAMR
in 2008.43 The court found that EPA’s delisting of the source category from Section 112 was
unlawful and that EPA was obligated to promulgate standards for mercury and other hazardous air
pollutants under Section 112.44 The court, therefore, did not reach the question of whether the
flexible approach taken by EPA for mercury controls (i.e., a cap-and-trade system) met the
requirements of Section 111(d).
In 1996, EPA used its Section 111(d) authority to regulate emissions of methane and non-methane
organic compounds from large landfills.45 These regulations set numeric emission limits and
required designated landfills to use certain types of control equipment.46 EPA also used its Section
111(d) authority for another emission guideline rule for large municipal waste combustors, which
EPA proposed in 1989 and finalized in 1991 pursuant to a consent decree.47 However, the 1990
CAA amendments added a new CAA Section 129 specifically to address emissions from solid

38 Ibid., 64714; see also below, “Q: What legal arguments are being made for and against the final CPP rule?”
39 If there is a discrepancy between the U.S. Statutes at Large and the U.S. Code, the U.S. Statutes at Large is the
controlling legal evidence of the law, unless Congress has enacted the relevant title of the U.S. Code as positive law; in
that case, the U.S. Code is also legal evidence of the law. See 1 U.S.C. §§112, 204(a).
40 P.L. 101-549, §302(a), 104 Stat. 2399, 2574 (1990).
41 American College of Environmental Lawyers, “Memorandum for Environmental Council of the States (ECOS)
Concerning Clean Air Act 111(d) Issues,” February 22, 2014, 5, 8-10, http://acoel.org/file.axd?file=
2014%2F9%2FACOEL+Master+Memo+2-22-14+(1).pdf.
42 70 Federal Register 28606, May 18, 2005 (establishing Subpart HHHH).
43 New Jersey vs. EPA, 517 F.3d 574 (D.C. Cir. 2008). EPA subsequently promulgated the MATS rule pursuant to
CAA Section 112(d), which, as noted above, remains in litigation. 77 Federal Register 9304, February 16, 2012; see
also footnote 34.
44 New Jersey vs. EPA, 517 F.3d at 581-584.
45 See generally EPA, “Standards of Performance for New Stationary Sources and Guidelines for Control of Existing
Sources: Municipal Solid Waste Landfills,” Final Rule, 61 Federal Register 9905, March 12, 1996.
46 Ibid.
47 56 Federal Register 5514, February 11, 1991 (establishing 40 C.F.R. Part 60, Subpart Ca, large municipal waste
combustors and discussing background of rulemaking).
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waste incinerators, including municipal waste combustors. Section 129 required Section 111
NSPS and emission guidelines for solid waste incinerators to meet certain requirements,48 so the
1991 rule for large municipal waste combustors was superseded by a later rule intended to
comply with Section 129.49 EPA adopted the remaining Section 111(d) emission guidelines for
acid mist from sulfuric acid production units,50 fluoride emissions from phosphate fertilizer
plants,51 total reduced sulfur emissions from kraft pulp mills,52 and fluoride emissions from
primary aluminum plants.53 Additionally, EPA has promulgated six rules that implement Section
111(d) in conjunction with the requirements of CAA Section 129.54
Q: How do the CPP standards for existing power plants relate to EPA’s GHG
standards for new
fossil-fueled power plants?
A: EPA finalized standards for new fossil-fuel power plants under Section 111(b) of the CAA on
the same day it finalized the CPP rule.55 As discussed earlier, when EPA sets NSPSs for a source
category for an air pollutant under Section 111(b), EPA triggers Section 111(d)’s applicability for
existing sources in the Section 111(b) regulated source category for the air pollutant if the air
pollutant is neither regulated as a criteria pollutant under a NAAQS nor, according to EPA’s
interpretation, regulated as a HAP for the source category.56 Consequently, EPA’s adoption of
NSPSs for new fossil fuel power plants for CO2 triggered Section 111(d)’s applicability for
existing fossil fuel power plants for CO2.
Conversely, EPA has no authority to set Section 111(d) performance standards for existing
sources in a source category for an air pollutant if EPA has no NSPSs for new sources in the
source category for the air pollutant. Many of the petitioners challenging the CPP rule for existing
power plants are also challenging EPA’s NSPSs for new, modified, or reconstructed power plants
for CO2.57 Because the CPP rule is predicated on the NSPS rule, a court decision striking down
the NSPS rule would undermine the CPP rule’s legal basis.
Q: How does Section 111 define the term “standards of performance”?
A: The term “standards of performance” appears repeatedly in CAA Section 111, including in
both the Section 111(b) provisions relating to new sources and the Section 111(d) provisions

48 42 U.S.C. §7429. CAA Section 129 overrides some otherwise applicable aspects of Section 111(d) for solid waste
combustion. For example, Section 129 requires that Section 111(d)/129 state plans be submitted to EPA within one
year after promulgation of emission guidelines by EPA, whereas Section 111(d) plans have a different schedule.
49 60 Federal Register 65387, February 19, 1995 (establishing Subpart Cb under CAA Section 129).
50 42 Federal Register 55796, October 18, 1977, 56 Federal Register 5514, February 11, 1991; and 60 Federal Register
65387, December 19, 1995 (establishing current Subpart Cd).
51 EPA, “Phosphate Fertilizer Plants, Final Guideline Document Availability,” 42 Federal Register 12022, March 1,
1977.
52 EPA, “Kraft Pulp Mills; Final Guideline Document; Availability,” 44 Federal Register 29828, May 22, 1979.
53 EPA, “Primary Aluminum Plants; Availability of Final Guideline Document,” 45 Federal Register 26294, April 17,
1980.
54 See footnote 41, 5-8 (citing 40 C.F.R. Parts Cb, Ce, BBBB, DDDD, FFFF, and MMMM).
55 EPA, “Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary
Sources: Electric Utility Generating Units,” Final Rule, 80 Federal Register 64509, October 23, 2015.
56 See above, “Q: Under what authority did EPA promulgate the CPP rule?” and “Q: What does Section 111(d), the
authority EPA cites for the CPP, bar EPA from regulating?”

57 See below, “Q: Might other litigation affect the final CPP rule?”
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relating to existing sources in a source category. Section 111(a) defines “standard of
performance” as:
[A] standard for emissions of air pollutants which reflects the degree of emission
limitation achievable through the application of the best system of emission reduction
which (taking into account the cost of achieving such reduction and any nonair quality
health and environmental impact and energy requirements) the Administrator determines
has been adequately demonstrated.58
Under this definition, EPA must determine the “best system of emission reduction” (BSER) that is
“adequately demonstrated,” considering certain factors. Then, EPA or states, as applicable, must
base the standard for emissions on the degree of emission limitation that is “achievable” through
the BSER. The CAA does not define these component terms within the definition of “standard of
performance.”
As discussed in more detail below,59 in the CPP rule, EPA determined the BSER for existing
power plants based on three “building blocks”: (1) efficiency improvements at affected coal-fired
power plants, (2) generation shifts among affected power plants, and (3) renewable generating
capacity.60 It then used the BSER to set CO2 emission performance rates.61 EPA used a different
approach to determine the BSER for new, modified, and reconstructed power plants.62
Courts have expanded on the CAA Section 111 definition of the term “standards of performance”
and EPA’s interpretation of its component terms but generally with respect to NSPS under Section
111(b), rather than emission guidelines for existing sources under Section 111(d).63 As discussed
further below,64 EPA explains that the interpretation of the term “standards of performance” and
related terms is guided by Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), in which the U.S.
Supreme Court stated that if a statute “is silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency’s answer is based on a permissible construction of the
statute.”65 However, some opponents of the CPP rule argue that this framework, known as
Chevron deference,” should not apply, at least to certain aspects of EPA’s interpretation of CAA
Section 111.66

58 CAA §111(a)(1), 42 U.S.C. §7411(a)(1).
59 See “Q: How did EPA establish the national CO2 emission performance rates?”
60 See generally EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility
Generating Units,” Final Rule, Part V, 80 Federal Register 64661, 64717-64811, October 23, 2015.
61 See ibid., parts VI-VII, 80 Federal Register at 64811-64826.
62 See EPA, “Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed
Stationary Sources: Electric Utility Generating Units,” Final Rule, 80 Federal Register 64509, 64626-28, October 23,
2015; see also EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility
Generating Units,” Final Rule, 80 Federal Register 64661, 64718-19 fn. 300, October 23, 2015 (characterizing EPA’s
interpretation of the requirements for standards of performance and BSER in the 111(b) and 111(d) rules for CO2 from
power plants as “generally consistent except to the extent that they reflect distinctions between new and existing
sources”).
63 See, e.g., Lignite Energy Council v. EPA, 198 F.3d 930, 933 (D.C. Cir. 1999); Sierra Club v. Costle, 657 F.2d 298
(D.C. Cir. 1981); ASARCO Inc. v. EPA, 578 F.2d 319 (D.C. Cir. 1978); Essex Chemical Corp. v. Ruckelshaus, 486
F.2d 427 (D.C. Cir. 1973); Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 391 (D.C. Cir. 1973).
64 See “Q: What legal arguments are being made for and against the final CPP rule?”
65 467 U.S. at 842-43.
66 See “Q: What legal arguments are being made for and against the final CPP rule?”
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The Final Rule
Q: How does the final rule differ from the proposed rule?
A: EPA’s 2015 final rule is different from EPA’s 2014 proposed rule. A key change is the
establishment of national CO2 emission performance rates for the sources affected by the rule:
fossil-fuel-fired electric steam generating units and stationary combustion turbines.
EPA used what it called “building blocks” to derive the national emission performance rates and
state-specific targets based on the national rates. The final rule’s state-specific targets differ from
those in the proposed rule, because in the final rule, EPA applied its building block assumptions
to regional-level data to create regional CO2 emission performance rates. These regional rates led
to national rates, which were then used to produce state-specific emission rate and emission
targets. By contrast, in the proposed rule, EPA applied building blocks to state-level data, yielding
different outcomes.
In addition, EPA modified its target creation methodology (e.g., building blocks) in the final rule.
Key modifications include adjustments to:
 renewable energy,
 natural gas combined cycle (NGCC) displacement of coal-fired electricity
generation,
 heat rate improvements at coal-fired units,
 energy efficiency,
 nuclear power, and
 state-specific 2012 baselines.
These methodology changes impact only the state-specific targets. States can choose to use a
variety of mechanisms to meet their targets, including, but not limited to, the emission reduction
activities assumed in EPA’s methodology.
In addition, state compliance with the final rule begins in 2022 instead of 2020 under the
proposed rule. The final rule has additional compliance options available to states, particularly in
the form of state plans.
Q: By how much would the final rule reduce CO2 emissions?
A. EPA’s final rule does not set a future level of CO2 emissions from existing electricity
generators. The rule establishes uniform national CO2 emission67 performance rates—measured in
pounds of CO2 per megawatt-hour (MWh) of electricity generation—and state-specific CO2
emission rate and emission targets. States determine which measure they want to use to be in
compliance.
Although it has been widely reported that the rule would require a 32% reduction in CO2
emissions from the electricity sector by 2030, compared to 2005 levels, this reduction is EPA’s

67 The final rule does not address other GHG emissions. The primary GHGs emitted by humans (and estimated by EPA
in its annual inventories) include carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6),
chlorofluorocarbons (CFCs), HFCs, and PFCs.
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estimate of the rule’s ultimate effect nationwide. The final rule does not explicitly require this
level of emission reduction from electric generating facilities or states.
EPA uses computer models to project these CO2 emission levels. The actual emissions will
depend on how states choose to comply with the rule and how much electricity is generated (and
at what type of generation units).
Figure 3 compares EPA’s projections of CO2 emissions in the electricity sector resulting from the
final rule with historical CO2 emissions (1990-2013) from the electricity sector. The figure also
illustrates the projected CO2 emissions from the electricity sector under EPA’s baseline scenario
(i.e., business-as-usual). The figure indicates that the final rule would reduce CO2 emissions in
the electricity sector by 32% in 2030 compared to 2005 levels. Under the baseline scenario
(without the rule), EPA projects a 16% reduction by 2030 compared to 2005 levels.
Figure 3. U.S. CO2 Emissions from Electricity Generation
Historical Emissions, Baseline Projection, and Clean Power Plan Projection

Source: Prepared by CRS; historical emissions from EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks:
1990–2013
, April 2015; baseline and CPP projections from EPA, Power Sector Modeling, http://www.epa.gov/
airmarkets/programs/ipm/cleanpowerplan.html.
Notes: CRS converted EPA’s projected emissions from short tons to metric tons.
Q: To whom does the final rule directly apply?
A: The final rule directs governors (or their designees) to submit state-specific plans to EPA that
describe how the states will meet their compliance obligations established by the final rule.
Q: What type of facilities are affected by the final rule?
A: The final rule addresses CO2 emissions at “affected” electric generating units (EGUs). In
general, an affected EGU is a fossil-fuel-fired unit that was in operation or had commenced
construction as of January 8, 2014, has a generating capacity above a certain minimum threshold,
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and sells a certain amount of its electricity generation to the grid.68 The state-specific plans will
describe the requirements that affected EGUs will face.
Q: How many EGUs and facilities are affected by the final rule?
A: Based on data EPA provided in support of its final rule,69 the affected EGU definition applies
to approximately 3,000 EGUs at approximately 1,100 facilities. The number of EGUs and
facilities varies by state.
Q: Does the final rule apply to all states and territories?
A: EPA did not establish emission rate goals for Vermont and the District of Columbia, because
they do not currently have affected EGUs. Although Alaska and Hawaii had targets in the
proposed rule, in its final rule, EPA stated that Alaska, Hawaii, and the two U.S. territories with
affected EGUs (Guam and Puerto Rico) will not be required to submit state plans on the schedule
required by the final rule, because EPA “does not possess all of the information or analytical tools
needed to quantify” the best system of emission reduction for these areas. EPA stated it will
“determine how to address the requirements of section 111(d) with respect to these jurisdictions at
a later time.”70
Q: What is the deadline for submitting state plans to EPA?
A: By September 6, 2016, states must submit to EPA either an initial plan or final plan. If a state
submits an initial plan, the state can seek an extension from EPA to submit its final plan by
September 6, 2018. If EPA grants this extension, the state must submit a progress report by
September 6, 2017.
Q: What are the different options available to states when preparing their state
plans?

A: States have several key decisions to make when crafting their state plans. Perhaps the most
important decision is whether they should measure compliance with an emission rate target
(pounds of CO2 per MWh) or a mass-based target (tons of CO2). EPA provides both targets in its
final rule. If a state decides to set up an emission (or emission rate) trading system, the trading
system would be compatible only with systems using the same metric. In other words, a rate-
based state cannot trade with a mass-based state.
In addition, the final rule allows for two types of state plans, described by EPA as (1) an
“emission standards” approach and (2) a “state measures” approach. With an emission standards
approach, a state would implement national CO2 emission performance rates (discussed below)
directly at the affected EGUs in the state. In contrast, a state measures approach would allow a
state to achieve the equivalent of the national CO2 emission performance rates by using some
combination of federally enforceable standards and elements that would be enforceable only
under state laws (e.g., renewable energy and/or energy efficiency requirements).

68 For further details, see EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility
Generating Units,” Final Rule, 80 Federal Register 64715, October 23, 2015.
69 See “Data File: Goal Computation Appendix 1-5,” at http://www2.epa.gov/cleanpowerplan/clean-power-plan-final-
rule-technical-documents.
70 EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,”
Final Rule, 80 Federal Register 64743, October 23, 2015.
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Q: Can states join together and submit multi-state plans?
A: States have the option of submitting multi-state plans. The same deadlines apply to multi-state
plans. A multi-state plan would employ either a rate-based or mass-based approach.
Q: What are the national CO2 emission performance rates in the final rule?
A: The final rule establishes uniform national CO2 emission performance rates—measured in
pounds of CO2 per MWh of electricity generation—for each of the two subcategories of EGUs
affected by the rule (Table 1). These subcategories include (1) fossil-fuel-fired electric steam
generating units, of which coal generation accounts for 94%—oil and natural gas contribute the
remainder—and (2) stationary combustion turbines, namely NGCC units.
The national rates are a major change from the proposed rule, which did not include similar
performance rates at the EGU level. As discussed below, the national CO2 emission performance
rates are the underpinnings for the calculations that EPA used to develop state-specific emission
rates and mass-based targets.
Table 1. National CO2 Performance Rates
Pounds of CO2 per Megawatt-hour
Interim
(Average of
Final

2022
2023
2024
2025
2026
2027
2028
2029
2030
2022-2030)
(2030)
Fossil
1,741
1,681
1,592
1,546
1,500
1,453
1,404
1,355
1,304
1,534
1,305
steam
units
NGCC
898
877
855
836
817
798
789
779
770
832
771
units
Source: Prepared by CRS; annual rates from EPA, CO2 Emission Performance Rate and Goal Computation Technical
Support Document for CPP Final Rule
, August 2015.
Notes: To generate the final rates, EPA used the 2030 rates and rounded up to the next integer.
Q: How did EPA establish the national CO2 emission performance rates?
A: EPA compiled 2012 CO2 emissions and electricity generation data from each affected EGU in
each state. Then EPA divided the states into three regions (see Figure 4), aggregating the CO2
emission and electricity generation data. Next, EPA applied three “building blocks” to the
aggregated regional data:
 Building block 1: EPA applied heat rate improvements to coal-fired EGUs,
improving their overall emission rate. The improvements vary by region from
2.1% to 4.3%.
 Building block 2: EPA assumed NGCC generation would increase to a specific
ceiling, displacing an equal amount of generation from steam units (primarily
coal). Note that in the final rule, EPA applies building block 3 before building
block 2, dampening the impact of building block 2.
 Building block 3: EPA projected annual increases in renewable energy
generation, which resulted in corresponding decreases in generation from
affected EGUs. EPA based the future increases on renewable energy generation
increases between 2010 and 2014
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EPA’s building block application produced annual CO2 emission performance rates for steam and
NGCC units in each region. EPA compared the rates in each of the three regions and chose the
least stringent regional rate as the national standard for that particular year for each EGU category
(Table 1).
Figure 4. Electricity Regions in EPA’s Methodology

Source: Reproduced from EPA, Overview of the Clean Power Plan: Cutting Carbon Pollution from Power Plants,
August 2015, http://www.epa.gov/airquality/cpp/fs-cpp-overview.pdf. The figure has a minor error, as the Texas
region should be labeled as the Electric Reliability Council of Texas Interconnection.
Notes: EPA did not establish emission rate goals for Vermont and the District of Columbia because they do not
currently have affected EGUs. Although Alaska and Hawaii have targets in the proposed rule, in its final rule, EPA
stated that Alaska, Hawaii, and the two U.S. territories with affected EGUs (Guam and Puerto Rico) wil not be
required to submit state plans on the schedule required by the final rule, because EPA “does not possess all of
the information or analytical tools needed to quantify” the best system of emission reduction for these areas.
EPA stated it wil “determine how to address the requirements of section 111(d) with respect to these
jurisdictions at a later time” (EPA, “Carbon Pol ution Emission Guidelines for Existing Stationary Sources: Electric
Utility Generating Units,” Final Rule, 80 Federal Register 64743, October 23, 2015).
Q: How did EPA calculate the state-specific emission rate targets?
A: To generate state-specific emission rate targets, EPA applied the national CO2 emission
performance rates to each state’s baseline (2012) of fossil fuel generation (steam generation vs.
NGCC generation).
For example, in 2012, Arizona’s electricity generation mix included
 49% steam generation, and
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 51% NGCC generation.
To calculate Arizona’s 2030 emission rate target, EPA multiplied the percentage of each
generation type by the corresponding 2030 national CO2 emission performance rate (Table 1):
(49% X 1,305 lbs. CO2/MWh) + (51% X 771 lbs. CO2/MWh) = 1,031 lbs. CO2/MWh
Q: What are the state-specific emission rate targets?
A: Table 2 lists the 2030 emission rate targets for each state and the 2012 emission rate baselines.
In addition, the table lists the implied percentage reductions required to achieve the 2030
emission rate targets compared to the 2012 baselines.
EPA used different formulas to calculate the 2012 baselines in the proposed and final rules. The
final rule baseline includes pounds of CO2 generated from affected EGUs in each state (the
numerator) divided by the electricity generated from these units. The proposed rule baseline
included pounds of CO2 generated from affected EGUs in each state (the numerator) divided by
the electricity generated from these units and “at-risk” nuclear power and renewable energy
generation (the denominator). Including these additional elements in the denominator can yield
lower baselines compared to the final rule.
Therefore, it is problematic to compare the percentage rate reductions from the proposed rule
with the final rule, because the 2012 baseline calculations changed—sometimes dramatically—in
the final rule. For example, Washington’s 2012 baseline was 756 lbs. CO2/MWh in the proposed
rule. In the final rule, Washington’s 2012 baseline increased by 107% to 1,556 lbs. CO2/MWh.
Table 2. State-Specific Emission Rate Baselines (2012), Emission Rate Targets (2030),
and Percentage Reductions Compared to Baselines
2012 Emission Rate
2030 Emission Rate
Percentage Change
State
Baseline
Target
Compared to Baseline

Pounds of CO2 per megawatt-hour of electricity generation
Alabama
1,518
1,018
33%
Alaska
Not established
Not established
NA
Arizona
1,552
1,031
34%
Arkansas
1,816
1,130
38%
California
954
828
13%
Colorado
1,904
1,174
38%
Connecticut
846
786
7%
Delaware
1,209
916
24%
Florida
1,221
919
25%
Georgia
1,597
1,049
34%
Hawaii
Not established
Not established
NA
Idaho
834
771
8%
Il inois
2,149
1,245
42%
Indiana
2,025
1,242
39%
Iowa
2,195
1,283
42%
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Kansas
2,288
1,293
43%
Kentucky
2,122
1,286
39%
Louisiana
1,577
1,121
29%
Maine
873
779
11%
Maryland
2,031
1,287
37%
Massachusetts
1,003
824
18%
Michigan
1,928
1,169
39%
Minnesota
2,082
1,213
42%
Mississippi
1,151
945
18%
Missouri
2,008
1,272
37%
Montana
2,481
1,305
47%
Nebraska
2,161
1,296
40%
Nevada
1,102
855
22%
New Hampshire
1,119
858
23%
New Jersey
1,058
812
23%
New Mexico
1,798
1,146
36%
New York
1,140
918
19%
North Carolina
1,673
1,136
32%
North Dakota
2,368
1,305
45%
Ohio
1,855
1,190
36%
Oklahoma
1,565
1,068
32%
Oregon
1,089
871
20%
Pennsylvania
1,642
1,095
33%
Rhode Island
918
771
16%
South Carolina
1,791
1,156
35%
South Dakota
1,895
1,167
38%
Tennessee
1,985
1,211
39%
Texas
1,553
1,042
33%
Utah
1,790
1,179
34%
Virginia
1,366
934
32%
Washington
1,566
983
37%
West Virginia
2,064
1,305
37%
Wisconsin
1,996
1,176
41%
Wyoming
2,315
1,299
44%
Source: Prepared by CRS; final rule target and baseline data from EPA, CO2 Emission Performance Rate and Goal
Computation Technical Support Document for CPP Final Rule
, August 2015, and accompanying spreadsheets,
http://www2.epa.gov/cleanpowerplan/clean-power-plan-final-rule-technical-documents. The interim and final
targets are codified in 40 C.F.R. Part 60, Subpart UUUU, Table 2.
Notes: EPA did not establish emission rate goals for Vermont and the District of Columbia because they do not
currently have affected EGUs. Although Alaska and Hawaii had targets in the proposed rule, in its final rule, EPA
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stated that Alaska, Hawaii, and the two U.S. territories with affected EGUs (Guam and Puerto Rico) wil not be
required to submit state plans on the schedule required by the final rule, because EPA “does not possess all of
the information or analytical tools needed to quantify” the best system of emission reduction for these areas.
EPA stated it wil “determine how to address the requirements of section 111(d) with respect to these
jurisdictions at a later time” (EPA, “Carbon Pol ution Emission Guidelines for Existing Stationary Sources: Electric
Utility Generating Units,” Final Rule, 80 Federal Register 64743, October 23, 2015).
Q: How did EPA calculate the state-specific mass-based targets?
A: EPA’s conversion from emission rate targets to mass-based targets involves two steps. First,
EPA multiplied a state’s emission rate target (lbs. CO2/MWh) for a particular year (e.g., 2022) by
the state’s 2012 CO2 generation baseline (MWh). This yields an initial mass-based value for that
year.
Second, EPA determined the amount of renewable energy generation (pursuant to building block
3) that would not be needed to achieve the emission rate targets. This “excess” generation is
available because EPA chose the least stringent of the three regional CO2 performance rates as the
national CO2 performance rate.71 EPA explained:
Due to the nature of the emission performance rate methodology, which selects the
highest of the three interconnection-based values for each source category as the CO2
emission performance rate, there are cost-effective lower-emitting generation
opportunities quantified under the building blocks that are not necessary for affected
EGUs in the Western and Texas interconnections to demonstrate compliance at historical
generation levels.72
EPA calculated the CO2 emissions associated with this “excess” generation and allocated the CO2
emissions to all of the states based on their 2012 generation, increasing their annual mass-based
targets. As a result, some of the states’ 2030 mass-based targets are higher than their 2012
emission baselines.
EPA based the renewable energy allocation on each state’s share of total electricity generation in
2012 from affected EGUs. For example, in 2012, Florida’s affected EGUs accounted for 8% of
the generation from all affected EGUs, so Florida received 8% of the excess renewable energy
generation in the mass-based calculation.
Q: What are the state-specific mass-based targets?
A: Table 3 lists the state-specific, mass-based targets from EPA’s final rule. The table compares
the 2030 targets with the 2012 baselines as calculated for the final rule and provides a percentage
change between the two values. Most of the states have emission reduction requirements, but
three states (Connecticut, Idaho, and Maine) have 2030 targets that are higher than their 2012
baselines (as discussed above).

71 For further discussion of these calculations, see EPA, CO2 Emission Performance Rate and Goal Computation
Technical Support Document for the CPP Final Rule
, August 2015, http://www.epa.gov/sites/production/files/2015-11/
documents/tsd-cpp-emission-performance-rate-goal-computation.pdf.
72 EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,”
Final Rule, 80 Federal Register 64822, October 23, 2015.
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Table 3. State-Specific 2012 CO2 Emission Baselines and 2030 CO2 Emission Targets
Short Tons—Alphabetical by State
2012 CO2 Emission
2030 CO2 Emission
Percentage
State
Baseline
Targets
Change
Alabama
75,571,781
56,880,474
-25%
Alaska
Not established
Not established
Not established
Arizona
40,465,035
30,170,750
-25%
Arkansas
43,416,217
30,322,632
-30%
California
49,720,213
48,410,120
-3%
Colorado
43,209,269
29,900,397
-31%
Connecticut
6,659,803
6,941,523
4%
Delaware
5,540,292
4,711,825
-15%
Florida
124,432,195
105,094,704
-16%
Georgia
62,843,049
46,346,846
-26%
Hawaii
Not established
Not established
Not established
Idaho
1,438,919
1,492,856
4%
Il inois
102,208,185
66,477,157
-35%
Indiana
110,559,916
76,113,835
-31%
Iowa
38,135,386
25,018,136
-34%
Kansas
34,655,790
21,990,826
-37%
Kentucky
92,775,829
63,126,121
-32%
Louisiana
44,391,194
35,427,023
-20%
Maine
2,072,157
2,073,942
0.1%
Maryland
20,171,027
14,347,628
-29%
Massachusetts
13,125,248
12,104,747
-8%
Michigan
69,860,454
47,544,064
-32%
Minnesota
34,668,506
22,678,368
-35%
Mississippi
27,443,309
25,304,337
-8%
Missouri
78,039,449
55,462,884
-29%
Montana
19,147,321
11,303,107
-41%
Nebraska
27,142,728
18,272,739
-33%
Nevada
15,536,730
13,523,584
-13%
New Hampshire
4,642,898
3,997,579
-14%
New Jersey
19,269,698
16,599,745
-14%
New Mexico
17,339,683
12,412,602
-28%
New York
34,596,456
31,257,429
-10%
North Carolina
67,277,341
51,266,234
-24%
North Dakota
33,757,751
20,883,232
-38%
Ohio
102,434,817
73,769,806
-28%
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2012 CO2 Emission
2030 CO2 Emission
Percentage
State
Baseline
Targets
Change
Oklahoma
52,862,077
40,488,199
-23%
Oregon
9,042,668
8,118,654
-10%
Pennsylvania
119,989,743
89,822,308
-25%
Rhode Island
3,735,786
3,522,225
-6%
South Carolina
35,893,265
25,998,968
-28%
South Dakota
5,121,124
3,539,481
-31%
Tennessee
41,387,231
28,348,396
-32%
Texas
251,848,335
189,588,842
-25%
Utah
32,166,243
23,778,193
-26%
Virginia
35,733,502
27,433,111
-23%
Washington
15,237,542
10,739,172
-30%
West Virginia
72,318,917
51,325,342
-29%
Wisconsin
42,317,602
27,986,988
-34%
Wyoming
50,218,073
31,634,412
-37%
Source: Prepared by CRS using data from EPA, CO2 Emission Performance Rate and Goal Computation Technical
Support Document for CPP Final Rule
(August 2015). The interim and final targets are codified in 40 C.F.R. Part 60,
Subpart UUUU, Table 3.
Notes: EPA did not establish emission targets for Vermont and the District of Columbia because they do not
currently have affected EGUs. Although Alaska and Hawaii had targets in the proposed rule, in its final rule, EPA
stated that Alaska, Hawaii, and the two U.S. territories with affected EGUs (Guam and Puerto Rico) wil not be
required to submit state plans on the schedule required by the final rule, because EPA “does not possess all of
the information or analytical tools needed to quantify” the best system of emission reduction for these areas.
EPA stated it wil “determine how to address the requirements of section 111(d) with respect to these
jurisdictions at a later time” (EPA, “Carbon Pol ution Emission Guidelines for Existing Stationary Sources: Electric
Utility Generating Units,” Final Rule, 80 Federal Register 64743, October 23, 2015).
Q: Does the final rule apply to EGUs on Indian lands?
A: The final rule established emission rate and emission targets for three areas of Indian country:
1. the Navajo Nation,
2. the Ute Tribe of the Uintah and Ouray Reservation, and
3. the Fort Mojave tribe.
The targets (Table 4) are based on two facilities in the Navajo Nation (the Navajo Generating
Station and the Four Corners Power Plant), the South Point Energy Center on the Fort Mojave
Reservation, and the Bonanza Power Plant on the Uintah and Ouray Indian Reservation.
Table 4. Emission Rate and Emission Targets for Areas of Indian Country
2012 CO2
2030 CO2
2012 CO2
2030 CO2
Area of
Emission
Emission Rate
Percentage
Emission
Emission
Percentage
Indian Land
Rate Baseline
Target
Change
Baseline
Targets
Change
Fort Mojave
858
771
-10%
583,530
588,519
1%
Tribe
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2012 CO2
2030 CO2
2012 CO2
2030 CO2
Area of
Emission
Emission Rate
Percentage
Emission
Emission
Percentage
Indian Land
Rate Baseline
Target
Change
Baseline
Targets
Change
Navajo
Nation
2,121
1,305
-38%
31,416,873
21,700,586
-31%
Ute Tribe
2,145
1,305
-39%
3,314,097
2,263,431
-32%
Source: Prepared by CRS. The targets are codified in 40 C.F.R. Part 60, Subpart UUUU, Table 2 (emission
rates) and Table 3 (mass-based).
As explained below,73 on October 23, 2015, in addition to finalizing the CPP and NSPSs for
EGUs, EPA proposed a rule for a federal plan,74 which would be implemented by EPA in states
that do not submit a satisfactory state implementation plan. In the federal plan rule, EPA proposed
“to find that it is necessary or appropriate to regulate affected EGUs in each of the three areas of
Indian country that have affected EGUs under the proposed federal plan.” According to EPA,
CAA Section 301(d)75 authorizes the agency to treat Indian tribes in the same manner as states for
the purposes of developing and implementing a tribal plan.
If EPA includes this provision in its final rule for federal plans, the tribal governments could seek
EPA approval to submit their own plans to meet their emission targets. If a tribal government
were not to seek such approval, EPA would develop and implement the federal plan for EGUs in
the relevant Indian lands. Such a development would not be unique to this regulatory program.
EPA has developed and implemented model rules and plans for states and tribes in other
regulatory contexts.
Q: Would states and companies that have already reduced GHG emissions
receive credit for doing so?

A: States do not receive “credit” in their emission rate or emission targets for emission reduction
measures already taken. Whether individual power companies will receive some type of credit
will be decided by states as they develop their implementation plans. The rule requires each state
to submit an implementation plan to EPA that identifies what measures/regulations the state will
implement to reach its goal.
EPA used 2012 data to prepare the national CO2 emission performance rates and each state’s
emission rate and emission targets. The final rule does not have a process for providing credit for
emissions reductions made prior to 2012. EPA contends that states that began action prior to
2012, including a shift to less carbon-intensive energy sources or energy efficiency
improvements, will be “better positioned” to meet state-specific emission rate goals.76 However,
some stakeholders would likely argue that the 2012 demarcation is unfair to states that invested in
low-carbon generation technology and/or energy efficiency improvements prior to 2012.

73 See “Q: What happens if a state fails to submit an adequate plan by the appropriate deadline?”, below.
74 U.S. EPA, “Federal Plan Requirements for Greenhouse Gas Emissions from Electric Utility Generating Units
Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations,” Proposed
Rule, 80 Federal Register 64966, October 23, 2015.
75 42 U.S.C. §7601(d).
76 U.S. EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating
Units,” Final Rule, 80 Federal Register 64897, October 23, 2015.
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Q: How does EPA’s final rule interact with existing GHG emission reduction
programs in the states, namely the Regional Greenhouse Gas Initiative and
California’s climate policies?

A number of U.S. states have taken action requiring greenhouse gas (GHG) emission reductions.
The most aggressive actions have come from a coalition of states from the Northeast and Mid-
Atlantic regions—the Regional Greenhouse Gas Initiative77—and California.78
The Regional Greenhouse Gas Initiative (RGGI) is a cap-and-trade system involving nine states
that took effect in 2009.79 RGGI applies to CO2 emissions from electric power plants with
capacities to generate 25 megawatts or more.
Pursuant to legislation passed in 2006, California established a cap-and-trade program that took
effect in 2013. California’s cap covers multiple GHGs and when fully implemented in 2015 will
apply to multiple sectors, covering approximately 85% of California’s GHG emissions. In
addition, California has other policies and regulations that address GHG emissions directly and
indirectly.80
EPA allows states considerable flexibility in terms of meeting their emission rates or emission
targets. For example, states can establish new programs to meet their goals or use existing
programs and regulations. Moreover, states can meet their goals individually or collaborate with
other states to create (or use existing) multistate plans.
It is uncertain whether the scope and stringency of the RGGI program or the California system
would be sufficient to meet the targets in EPA’s final rule. In particular, the emission caps in both
programs do not go beyond 2020.
Q: What role is there for “outside-the-fence” emission reductions?
A: “Outside-the-fence” emission reductions play a central role in the methodology EPA used to
establish the national CO2 emission performance rates, which, in turn, provide the foundation for
state-specific targets. In particular, building block 3 (discussed above) includes incremental
increases of renewable energy generation, with corresponding decreases in electricity generation
at fossil-fuel-fired power plants. Renewable energy appears to play a greater role in the final
rule’s methodology than in the proposed rule. However, the final rule omits building block 4 from
the proposed rule, which included outside-the-fence energy efficiency improvements.
Although outside-the-fence activities are a major component of EPA’s target calculations, the
degree to which outside-the-fence emission reductions are actually used will depend on the
policies and requirements states implement through their state plans.

77 See CRS Report R41836, The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Congress, by
Jonathan L. Ramseur. See also http://www.rggi.org/.
78 See http://www.arb.ca.gov/cc/capandtrade/capandtrade.htm.
79 Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont.
New Jersey participated in the program from 2009 through the end of 2011.
80 More details are available at http://www.climatechange.ca.gov/.
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Q: How would new fossil-fuel fired power plants and their resulting
electricity generation and emissions factor into a state’s emission rate or
emission calculations?

A: In EPA’s final rule, new EGUs are treated differently under rate-based and mass-based plans.
Under a mass-based approach, states have the option of including new fossil-fuel-fired sources in
their emission reduction plans. In its final rule, EPA provides mass-based emission targets that
include projections of new sources (described by EPA as a “new source complement”).81 This
inclusion would facilitate emissions trading within the state and with other states. These new
sources would remain subject to the performance standards under CAA Section 111(b).82
In its proposed rule, EPA considered whether states could include new NGCC units in their
emission rate calculations. In the final rule, EPA specifically prohibits states from including new
NGCC units as a means of directly adjusting the state’s emission rate. However, if a new NGCC
were to effectively replace existing electricity generation from a coal-fired EGU, the state’s
emission rate would likely decrease with the removal of the coal-fired unit.83
Q: What role does nuclear power play in EPA’s final rule?
A: EPA modified its treatment of nuclear power in the final rule. In its proposed rule, EPA
factored “at risk” nuclear power (estimated at 5.8% of existing capacity) into the state emission
rate methodology. As a result, states had an incentive to maintain the at-risk nuclear power
generation or their emission rates would increase (all else being equal). The final rule does not
include at-risk nuclear generation in its building block calculations.
In addition, in its final rule, EPA decided not to include under-construction nuclear power
capacity in the emission rate calculations. Including the estimated generation from these
anticipated units in the emission rate equation would have substantially lowered the emission rate
targets in Georgia, South Carolina, and Tennessee. If the final rule had retained this feature, and
these nuclear units did not enter service, these three states would likely have more difficulty
achieving their emission rate goals.
EPA clarified that the final rule would allow the generation from under-construction units, new
nuclear units, and capacity upgrades to help sources meet emission rate or emission targets.
Q: What role does energy efficiency play in EPA’s final rule?
A: In EPA’s proposed rule, demand-side energy efficiency (EE) improvements were part of the
agency’s state-specific emission rate target calculations (“building block 4”). However, in its final
rule, EPA did not include demand-side EE improvements as part the agency’s national CO2
emission performance rate calculations, which underlie the state-specific targets.
Although EPA removed demand-side EE assumptions from its target calculations, states may
choose to employ EE improvement activities as part of their plans to meet their targets. In

81 For further details on how EPA calculated the new source complement emissions, see EPA, New Source
Complements to Mass Goals, Technical Support Document for CPP Final Rule
, August 2015, http://www2.epa.gov/
cleanpowerplan/clean-power-plan-final-rule-technical-documents.
82 See U.S. EPA, “Standards of Performance for Greenhouse Gas Emissions for New, Modified, and Reconstructed
Stationary Sources; Electric Utility Generating Units,” Final Rule, 80 Federal Register 64510, October 23, 2015.
83 For a discussion of this issue, see EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources:
Electric Utility Generating Units,” Final Rule, 80 Federal Register 64903, October 23, 2015.
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particular, the final rule includes a new voluntary program that provides incentives for early
investments (in 2020 and 2021) in EE programs in low-income communities (as discussed
below).
In addition, in its Regulatory Impact Analysis (RIA) for the final rule, EPA assumes that EE will
play an important role in meeting compliance obligations:
[EE] is a highly cost-effective means for reducing CO2 from the power sector, and it is
reasonable to assume that a regulatory requirement to reduce CO2 emissions will
motivate parties to pursue all highly cost-effective means for making emission reductions
accordingly, regardless of what particular emission reduction measures were assumed in
determining the level of that regulatory requirement.84
Q: What role does biomass play in EPA’s final rule?
A: In its final rule, EPA would allow states to use “qualified biomass” as a means of meeting
state-specific reduction requirements. EPA defines qualified biomass as a “feedstock that is
demonstrated as a method to control increases of CO2 levels in the atmosphere.”85 This appears
to be a narrower approach than was taken in the proposed rule. Also, EPA requires additional
accounting and reporting requirements if a state decides to use qualified biomass. The agency
gives some indication as to which biomass types may qualify.86
Q: What is the Clean Energy Incentive Program?
A: EPA’s final rule includes a Clean Energy Incentive Program (CEIP) that encourages states to
support energy efficiency measures and renewable energy projects two years before the emission
rate or emission compliance obligations begin (i.e., in 2020 and 2021).87 States would need to
include particular design elements in their final plans in order to participate in the CEIP.
The CEIP establishes a system to award credits to energy efficiency projects in low-income
communities and renewable energy projects (only wind and solar) in participating states. The
credits take the form of emission rate credits (ERCs) or emission allowances, depending on
whether a state uses an emission rate or mass-based target, respectively. The credits could be sold
to or used by an affected emission source to comply with the state-specific requirements (e.g.,
emission rate or mass-based targets).
Renewable energy projects would receive one credit (either an allowance or ERC) from the state
and one credit from EPA for every two MWh of solar or wind generation. EE projects in low-
income communities would receive double credits: For every two MWh of avoided electricity
generation, EE projects will receive two credits from the state and two credits from EPA. EPA
will match up to the equivalent of 300 million short tons in credits during the CEIP program
life.88 The amount of EPA credits potentially available to each state participating in the CEIP

84 EPA, Regulatory Impact Analysis for the Clean Power Plan Final Rule, August 2015 (hereinafter RIA),
http://www2.epa.gov/cleanpowerplan/clean-power-plan-final-rule-regulatory-impact-analysis.
85 Defined in the final rule regulations (40 C.F.R. §60.5880); EPA, “Carbon Pollution Emission Guidelines for Existing
Stationary Sources: Electric Utility Generating Units,” Final Rule, 80 Federal Register 64662, October 23, 2015.
86 For further information, see CRS In Focus IF10280, The Clean Power Plan (CPP): The Treatment of Biomass, by
Kelsi Bracmort.
87 EPA, “Fact Sheet: Clean Energy Incentive Program,” August 2015, http://www.epa.gov/airquality/cpp/fs-cpp-
ceip.pdf.
88 As a reference point, the electricity sector generated approximately 2,200 short tons of CO2 emissions in 2013.
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depends on the relative amount of emission reduction each state is required to achieve compared
to its 2012 baseline. Thus, states with greater reduction requirements would have access to a
greater share of the EPA credits.
To generate the credits, states would effectively borrow from their mass-based or rate-based
compliance targets for the interim 2022-2029 compliance period. EPA would provide its share of
credits from a to-be-established reserve. In its proposed rule for the federal implementation plan
EPA is asking for comments on the size of the credit reserve and other CEIP implementation
details.89
Next Steps
Q: What are the next steps in the rule’s implementation?
A: The rule sets a deadline of September 6, 2016, for each state to submit a State Implementation
Plan (SIP) to EPA.90 In lieu of a completed plan, a state may make an initial submittal by that date
and request up to two additional years to complete its submission. For the extension of time to be
granted, the initial submittal must address three components sufficiently to demonstrate that the
state is able to undertake steps necessary to submit a final plan by September 6, 2018:
1. An identification of the final plan approach or approaches under consideration,
including a description of progress made to date;
2. An appropriate explanation for why the state needs additional time to submit a
final plan; and
3. A demonstration of how the state has been engaging with the public, including
vulnerable communities, and a description of how it intends to meaningfully
engage with community stakeholders during the additional time.
Following submission of final plans, EPA will review the submittals to determine whether they
are approvable. The agency expects to complete reviews within 12 months of the submittal
deadlines. The agency will follow notice-and-comment rulemaking procedures to ensure an
opportunity for public comment on the state submissions.
The interim compliance period for the rule begins in 2022. EPA is establishing an eight-year
interim period that begins in that year and runs through 2029 and is separated into three steps
(2022-2024, 2025-2027, and 2028-2029), each with its own interim goal. Affected EGUs must
meet each of the step 1, 2, and 3 CO2 emission performance rates or follow an EPA-approved
emissions reduction trajectory designed by the state itself for the eight-year period from 2022 to
2029.
Compliance with the state’s final goal is required by 2030.

89 See EPA, “Federal Plan Requirements for Greenhouse Gas Emissions from Electric Utility Generating Units
Constructed on or before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations,” Final Rule,
80 Federal Register 65025, October 23, 2015.
90 As noted below in “Q: What happens if a state fails to submit an adequate plan by the appropriate deadline?,” EPA
cannot compel a state to submit a plan, but the statute authorizes EPA to impose a federal plan on the state if a state
does not submit a satisfactory plan by EPA’s deadline.
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Q: What incentives are there for early compliance?
A: In general, the CPP states:
Incremental emission reduction measures, such as RE [renewable energy] and demand-
side EE, can be recognized as part of state plans, but only for the emission reductions
they provide during a plan performance period. Specifically, this means that measures
installed in any year after 2012 are considered eligible measures under this final rule, but
only the quantified and verified MWh of electricity generation or electricity savings that
they produce in 2022 and future years may be applied toward adjusting a CO2 emission
rate.91
As noted earlier, however, EPA is providing incentives for states to adopt measures that will
reduce emissions in 2020 and 2021 under the CEIP. Under the CEIP, EPA will provide credits
against CPP requirements for wind and solar projects that commence construction after the date
that a state submits its final plan to EPA and that generate metered electricity in 2020 and 2021.
EPA will provide double credits for EE measures that result in reducing electricity consumption
in low-income communities in participating states in the same two years.92
Q: What happens if a state fails to submit an adequate plan by the
appropriate deadline?

A: EPA cannot compel a state to submit a Section 111(d) plan. Rather, if a state fails to submit a
satisfactory plan by EPA’s deadline, CAA Section 111(d) authorizes EPA to prescribe a plan for
the state. This authority is the same, Section 111(d) says, as EPA’s authority to prescribe a federal
implementation plan (FIP) when a state fails to submit a state implementation plan to achieve a
National Ambient Air Quality Standard (NAAQS).93 EPA proposed a model FIP on August 3,
2015 (which appeared in the Federal Register on October 23, 201594), and is accepting public
comments on the proposal until January 21, 2016.
Q: What would the proposed FIP require?
A: Just as EPA cannot compel a state to submit a state plan, it also cannot compel a state to meet
its average emission targets. FIPs, therefore, would require compliance by individual EGUs in the
affected state. The proposed FIP would set either emission rates or emission limits for affected
EGUs. According to EPA, the stringency of the federal plan would be same as the national CO2
emission performance rates specified in the CPP.95 In addition, the FIP would establish a trading
program that could be used by affected EGUs to meet those limits. If the agency chooses to

91 EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,”
Final Rule, 80 Federal Register 64896, October 23, 2015.
92 For additional information, see “Q: What is the Clean Energy Incentive Program?” above.
93 CAA §110(c); 42 U.S.C. §7410(c).
94 See EPA, “Federal Plan Requirements for Greenhouse Gas Emissions from Electric Utility Generating Units
Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations,” Proposed
Rule, 80 Federal Register 64966, October 23, 2015. EPA’s website provides technical support documents and other
explanatory materials on the proposal at http://www2.epa.gov/cleanpowerplan/clean-power-plan-existing-power-
plants#federal-plan.
95 See the proposed FIP, page 64970.
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implement a mass-based program, the proposal envisions the allocation of allowances to
individual EGUs based on their historical emissions during the years 2010-2012.96
Although the proposed rule sets forth both a mass-based and a rate-based option for the proposed
trading program, the agency states that it intends to finalize a single approach—i.e., either a rate-
based or a mass-based approach—in all FIPs “in order to enhance the consistency of the federal
trading program, achieve economies of scale through a single, broad trading program, ensure
efficient administration of the program, and simplify compliance planning for affected EGUs.”97
While accepting comments on both approaches, the agency appears to be leaning toward a mass-
based option for use in the FIPs, stating that it
would be more straightforward to implement compared to the rate-based trading
approach, both for industry and for the implementing agency. The EPA, industry, and
many state agencies have extensive knowledge of and experience with mass-based
trading programs. The EPA has more than two decades of experience implementing
federally-administered mass-based emissions budget trading programs including the Acid
Rain Program (ARP) sulfur dioxide (SO2) trading program, the Nitrogen Oxides (NOX)
Budget Trading Program, CAIR, and CSAPR. The tracking system infrastructure exists
and is proven effective for implementing such programs.98
EPA notes that, under its proposed FIP rule, states with FIPs could still participate in the
implementation of the program under these conditions:
 After a federal plan is put in place for a particular state, the state would still be
able to submit a plan, which, if approved, would allow the state and its EGUs to
exit the federal plan.
 States would be allowed to take delegation of administrative aspects of the
federal plan in order to become the primary implementers, or they could submit
partial state plans in order to take over the implementation of a portion of a
federal plan. For example, the states could replace the federal plan’s allowance-
distribution provisions with their own allowance-distribution provisions.
 States operating under a federal plan would be allowed to adopt complementary
measures outside of that plan to facilitate compliance and lower costs to the
benefit of power generators and consumers.
Costs and Benefits of the Rule
Q: What role did cost play in EPA’s choice of emission standards?
A: Under Section 111(a)(1)’s definition of “standards of performance,” EPA must consider cost in
developing NSPSs and related emission guidelines for existing sources of pollution. Section
111(d)(1) also states, “Regulations of the Administrator under this paragraph shall permit the
State in applying a standard of performance to any particular source under a plan submitted under

96 For a discussion of the proposed allowance allocation system, see EPA, “Allowance Allocation Proposed Rule
Technical Support Document (TSD),” August 2015, http://www2.epa.gov/sites/production/files/2015-11/documents/
tsd-fp-allowance-allocations.pdf.
97 EPA, “Federal Plan Requirements for Greenhouse Gas Emissions From Electric Utility Generating Units
Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations,” Proposed
Rule, 80 Federal Register 64970, October 23, 2015.
98 Ibid.
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this paragraph to take into consideration, among other factors, the remaining useful life of the
existing source to which such standard applies.”
In addition, EPA is required by Executive Order 12866 to provide a cost-benefit analysis when it
proposes or promulgates economically significant rules. The CPP is an economically significant
rule and was therefore subject to the executive order. E.O. 12866 states that “in choosing among
alternative regulatory approaches, agencies should select those approaches that maximize net
benefits (including potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity), unless a statute requires another regulatory
approach.”99
The agency’s RIA, which it prepared to comply with the executive order, is available on the
agency’s website.100
Q: What are EPA’s estimates of the costs of this rule?
A: The cost of the rule will depend on whether states adopt a rate-based or a mass-based approach
to compliance. In EPA’s analysis, the cost associated with a mass-based approach is generally less
than that of the rate-based: The annual incremental compliance cost for the mass-based approach
is estimated by EPA to be $1.4 billion in 2020, $3.0 billion in 2025, and $5.1 billion in 2030; the
comparable figures for the rate-based costs are $2.5 billion in 2020, $1.0 billion in 2025, and
$8.4 billion in 2030. Because states will generally determine how to comply with the goals
established by the final rule, EPA refers to these cost estimates as “illustrative” and notes that they
“do not represent the full suite of compliance flexibilities states may ultimately pursue.”101 EPA
describes the cost estimate as including “the net change in the annualized cost of capital
investment in new generating sources and heat rate improvements at coal-fired steam generating
units, the change in the ongoing costs of operating pollution controls, shifts between or amongst
various fuels, demand-side energy efficiency measures, and other actions associated with
compliance.”102
Q: What other estimates of the CPP’s cost are there?
A: On November 9, 2015, the American Coalition for Clean Coal Electricity, an industry group,
released a study of the CPP’s impacts prepared by NERA Economic Consulting. The study
concluded that the annual cost of compliance would range from $29 billion to $39 billion in the
period 2022-2033, and that 40 states would see average electricity price increases of 10% or more
under at least one of the scenarios it modeled.103 A study released by the National Mining
Association projected sharp increases in the cost of both electricity and natural gas as a result of

99 Interagency Working Group on Social Cost of Carbon, United States Government. Technical Support Document: -
Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis - Under Executive Order 12866.
Washington, DC: Office of Management and Budget, November 2013, Section 1. http://www.whitehouse.gov/sites/
default/files/omb/assets/inforeg/technical-update-social-cost-of-carbon-for-regulator-impact-analysis.pdf.
100 RIA.
101 RIA, p. ES-9.
102 RIA.
103 NERA Economic Consulting, Energy and Consumer Impacts of EPA’s Clean Power Plan, prepared for the
American Coalition for Clean Coal Electricity, November 7, 2015, http://www.americaspower.org/wp-content/uploads/
2015/11/NERA-CPP-Final-Nov-7.pdf.
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the rule, with a cumulative increase in wholesale electricity costs of $214 billion between 2022
and 2030.104
Others, including electric power producers and regional transmission organizations, argue that it
is too early to arrive at cost estimates.105 Much depends on decisions to be made by the states as
to how they will structure their regulatory programs and on projections of the cost of natural gas,
coal, renewable power, and end-use efficiency measures between now and 2030.
Q: What are the benefits EPA estimates for the CPP?
A: In the preamble to the final rule, EPA cites monetized climate benefits of the rule to be $20
billion in 2030 and the air pollution health co-benefits of the rule to be an additional $12 billion to
$34 billion (all estimates in 2011 dollars).106 The agency’s estimate of climate benefits is based on
an interagency estimate of the “social cost of carbon.”107 It reflects the monetary value of global
impacts from CO2 emission changes, including net changes in agricultural productivity and
human health, property damage from increased flood risk, and changes in energy system costs,
such as reduced costs for heating and increased costs for air conditioning.
The air pollution health co-benefits reflect reduced exposure to fine particulates (PM2.5) and
ozone. The health co-benefit estimate is expressed as a range. The range primarily reflects the use
of concentration-response functions from different epidemiology studies.108 Health benefits
reflect monetized estimates for the contiguous United States, not the rest of the world. A
reduction in premature fatalities each year accounts for over 98 percent of the total monetized
health co-benefits.
With estimated compliance costs rising to a maximum of $8.4 billion in 2030, EPA expects that
the CPP would yield net benefits of $24 billion to $49 billion in 2030.109

104 Energy Ventures Analysis, EPA’s Clean Power Plan: An Economic Impact Analysis, prepared for the National
Mining Association, November 17, 2015, http://nma.org/index.php/press-releases-2013/2376-clean-power-plan-will-
add-214-billion-to-wholesale-electricity-prices.
105 See, for example, ClimateWire, “Experts Say Accurate Clean Power Plan Cost Estimate Won't Arrive for Years,”
November 30, 2015. The article cites officials at the two largest regional transmission organizations, PJM
Interconnection and Midcontinent Independent System Operator, among others.
106 Each of these estimates uses a 3% discount rate (EPA, “Carbon Pollution Emission Guidelines for Existing
Stationary Sources: Electric Utility Generating Units,” Final Rule, 80 Federal Register 64680-64681, October 23,
2015). Discount rates reflect the preference of most people to have money now rather than in the future. Thus, they
discount the value of future benefits derived from the rule. Besides the 3% discount rate, EPA estimated the climate
benefits using three other discount rates: 2.5%, 5%, and “the 95th percentile at a 3% discount rate.” Estimates of the
climate benefits ranged from $6.4 billion to $61 billion in 2030, depending on which of these discount rates was used
(80 Federal Register 64934).
107 Interagency Working Group on Social Cost of Carbon, with participation by Council of Economic Advisers,
Council on Environmental Quality, Department of Agriculture, Department of Commerce, Department of Energy,
Department of Transportation, Domestic Policy Council, Environmental Protection Agency, National Economic
Council, Office of Management and Budget, Office of Science and Technology Policy, and Department of the
Treasury, “Technical Support Document: Technical Update of the Social Cost of Carbon for Regulatory Impact
Analysis Under Executive Order 12866,” May 2013, (revised July 2015), http://www.whitehouse.gov/sites/default/
files/omb/inforeg/scc-tsd-final-july-2015.pdf.
108 To a lesser extent, it reflects the overlapping benefit ranges that EPA estimated for rate-based and mass-based
compliance approaches. The mass-based estimate ranges from $12 billion to $28 billion in 2030; the rate-based benefit
estimate ranges from $14 billion to $34 billion.
109 Using the full range of benefits and costs reported in the RIA, assuming a 3% discount rate.
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EPA did not monetize other expected co-benefits of this rule, including reduced morbidity from
exposure to nitrogen dioxide, sulfur dioxide, and methylmercury and reduced effects from acid
deposition. EPA also did not quantify pollution effects on ecosystems or visibility.110
Potential Impacts on the Electricity Sector
Q: How might the CPP impact electricity prices and electricity bills?
A: In its RIA, EPA estimates that the national average retail electricity price111 will increase by
less than 1% in both 2025 and 2030 compared to EPA’s baseline scenario.112 However, EPA’s
analysis indicates the electricity price changes will vary by region, ranging from a 5.9% increase
(Wisconsin/Michigan region) to a 9% decrease (Long Island region) in 2030 compared to the
baseline scenario.113
By comparison, EPA estimates that the average monthly residential electricity bill will decline by
7.0%-7.7% in 2030 (compared to a baseline scenario) as consumption of electricity declines due
to efficiency measures.114 (EPA’s analysis does not provide a regional breakout for electricity bill
impacts.) Although the final rule does not include EE activities in the state target calculations
(i.e., building block 4),115 EE activities play a substantial role in EPA’s RIA.
Q: How does the CPP address electricity reliability?
A: EPA’s proposed rule generated substantial interest in the potential effects of the rule on the
reliability of the electric power supply. EPA asserts that it does not want compliance with the final
rule to interfere with industry’s ability to maintain the reliability of the nation’s electricity supply.
EPA’s final rule would address electric system reliability in several ways.
In particular, the final rule contains a provision for a reliability “safety valve” for individual
power plants. EPA states that there may be a need for an EGU to continue to operate and release
“excess emissions” if an emergency situation arises that could compromise electric system
reliability. The reliability safety valve allows for a 90-day reprieve from CO2 emissions limits.
EPA stated that the safety valve could be triggered only in an emergency situation. For example,
extreme weather events are “of short duration and would not require major—if any—adjustments
to emission standards for affected EGUs or to state plans.”116
EPA has also implemented a formal memorandum of joint understanding on maintaining electric
system reliability with the Department of Energy and the Federal Energy Regulatory Commission
so as to coordinate efforts while the state compliance plans are developed and implemented. The

110 A list of quantified and unquantified benefits of the rule is provided in the RIA, pp. ES12 to ES-14, at
http://www2.epa.gov/sites/production/files/2015-08/documents/cpp-final-rule-ria.pdf.
111 In the contiguous United States.
112 RIA, p. 3-35 and Tables 3-20 and 3-21.
113 RIA, Table 3-21.
114 RIA, p. 3-40.
115 See above “Q: What role does energy efficiency play in EPA’s final rule?”
116 EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,”
Final Rule, 80 Federal Register 64878, October 23, 2015.
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memorandum expresses the joint understanding of how the agencies will cooperate, monitor,
implement, share information, and resolve difficulties that may be encountered.117
Q: What types of electricity sectors infrastructure changes might result from
the CPP?

A: Although the CPP does not directly require infrastructure changes in the electricity sector,
states may need to modify or expand existing infrastructure to meet their emission or emission
rate targets. For example, increased use of existing NGCC capacity may require upgraded
transmission facilities and potentially new natural gas infrastructure to provide fuel. Projected
increases in renewable generation will likely require new transmission lines, and many of today’s
transmission projects awaiting regulatory approvals are intended to serve renewable electricity
projects. In addition, it can take anywhere from three to 10 years to get the federal, state, and
local permits in place to build a major electric transmission line.118 If additional transmission
capacity is required, planning would likely need to begin soon to get new lines in place for when
they would be needed in the early 2020s.
Congressional Review
Q: Can Congress use the Congressional Review Act (CRA) to disapprove
the rule?

A: The CRA provides a mechanism by which Congress may review and disapprove of agency
rules through passage of a joint resolution that is eligible for expedited procedures in the
Senate.119 If passed by both houses of Congress, such a joint resolution would be sent to the
President for his signature or veto.
The CRA provides expedited procedures for consideration of a joint resolution disapproving a
rule in both Senate committee and on the Senate floor. Any time after the expiration of a 20-
calendar-day period—which begins after a final rule is received by Congress and published in the
Federal Register—a Senate committee can be discharged from the further consideration of a
CRA joint resolution disapproving the rule.120 This discharge occurs upon the filing on the Senate
floor of a petition signed by at least 30 Senators.121 Once a CRA joint resolution of disapproval is
reported or discharged from Senate committee, any Senator may make a non-debatable motion to
proceed to consider the disapproval resolution.122 This motion to proceed requires a simple
majority for adoption. If the motion to proceed is successful, the CRA disapproval resolution

117 EPA-DOE-FERC Coordination on Implementation of the Clean Power Plan, August 2015, http://www.ferc.gov/
media/headlines/2015/CPP-EPA-DOE-FERC.pdf.
118 For further discussion, see CRS Report R44265, EPA's Clean Power Plan: Implications for the Electric Power
Sector
, by Richard J. Campbell.
119 5 U.S.C. §§801-808.
120 5 U.S.C. §802(c). It is important to note that the 20-day period is calculated from the receipt and publication of the
rule, not from the submission of a disapproval resolution aimed at the rule.
121 Ibid.
122 5 U.S.C. §802(d)(1). The motion to proceed to consider contained in the CRA, like the motion to proceed to
consider, contained in the Standing Rules of the Senate, can be made by any Senator. In modern practice, however,
with rare exceptions, Senators defer to the majority leader or his or her designee to make such scheduling motions.
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would be subject to up to 10 hours of debate and then voted upon.123 A non-debatable motion to
limit debate below 10 hours is in order. No amendments are permitted.124 A CRA disapproval
resolution requires a simple majority in order to pass.
The EPA’s final CPP rule for existing power plants was received in Congress on September 17,
2015,125 and published in the Federal Register on October 23, 2015. Three CRA resolutions of
disapproval were introduced following receipt by Congress: H.J.Res. 67, H.J.Res. 72, and
S.J.Res. 24. The Senate resolution became eligible for discharge from committee under the CRA’s
expedited procedures on November 13. Thirty Senators signed a discharge petition, and the
resolution was discharged from the Senate Committee on Environment and Public Works on
November 16.126 The Senate considered the resolution on the floor on November 17 and passed it
by a vote of 52-46.127
The CRA does not provide any expedited procedures for initial House consideration of a joint
resolution disapproving a rule; the House considers these resolutions through its regular order.
H.J.Res. 72 was referred to the House Committee on Energy and Commerce on October 26. The
Subcommittee on Energy and Power and the full committee marked up the resolution, and it was
ordered to be reported on November 18 by a vote of 28-21.128 On December 1, 2015, the House
considered S.J.Res. 24, previously passed by the Senate, under procedures from a special rule
reported by the Rules Committee and adopted by the House.129 The resolution was passed in the
House by a vote of 242-180.130 The President vetoed the resolution on December 18, 2015.131 As
of this publication, Congress has not yet taken action to override the presidential veto.
Q: What happens if the President vetoes a CRA joint resolution of
disapproval?

A: When a CRA joint resolution disapproving the rule is passed by both the House and the
Senate, it is then presented to the President for his signature or veto. If the President vetoes such a
measure, the House and Senate would have the opportunity to override the veto.132 If two-thirds
of both the House and the Senate vote to override the veto, the resolution would become law.
There are no expedited procedures for consideration of motions to override a veto.

123 5 U.S.C. §802(d)(2).
124 Ibid.
125 The rule was received by the Senate on September 11, 2015, and referred to the Committee on Environment and
Public Works on September 17, 2015. See Congressional Record, vol. 161 (September 17, 2015), p. S6807. The rule
was received by the House on September 11, 2015. See Congressional Record, vol. 161 (September 17, 2015), p.
H5977. For purposes of the act, a rule is considered to have been “received by Congress” on the later date of its receipt
in the Office of the Speaker of the House or its referral to Senate committee.
126 See Congressional Record, vol. 161 (November 16, 2015), p. S7965.
127 U.S. Senate, Roll Call Votes, 114th Congress—1st Session, Vote Summary on the Joint Resolution (S.J.Res. 24),
http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=114&session=1&vote=00306.
128 See H.Rept. 114-349 (2015).
129 H.Res. 539, 114th Cong. (providing for one hour of debate on S.J.Res. 24 and S.J.Res. 23 and waiving all points of
order).
130 Final Vote Results for Roll Call 650, S.J. Res. 24, http://clerk.house.gov/evs/2015/roll650.xml.
131 White House, “Memorandum of Disapproval on S.J. Res. 24,” press release, December 18, 2015,
https://www.whitehouse.gov/the-press-office/2015/12/19/memorandum-disapproval-sj-res-24.
132 For more information on the procedures for reconsideration of a vetoed measure, see CRS Report RS22654, Veto
Override Procedure in the House and Senate
, by Elizabeth Rybicki.
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Q: What would be the effect of an enacted CRA joint resolution of
disapproval?

A: If a CRA joint resolution disapproving a final rule is enacted, the rule would not take effect.133
If the rule has previously taken effect, it is not to continue in effect and “shall be treated as though
such rule had never taken effect.”134 Additionally, the agency is not permitted to reissue the
disapproved rule in “substantially the same form” or issue a “new rule that is substantially the
same” as the disapproved rule “unless the reissued or new rule is specifically authorized by a law
enacted after the date of the joint resolution disapproving the original rule.”135 The CRA does not
define the meaning or scope of the phrase “substantially the same,” what criteria should be
considered, or who should make such a determination.136 Since the CRA does not define
“substantially the same,” sameness could be determined by scope, penalty level, textual
similarity, or administrative policy, among other factors. For example, if Congress objected to a
specific section of language in a rule that was ultimately disapproved, would a rule that only
removed that language be considered “substantially the same” as the original? If the agency
reissued a rule in which it changed one standard listed in the original regulation, would that be
substantially similar? If it changed the number of categories to which a standard applied, would
the rule still be “substantially the same”? These questions, for which no definitive answer is
available, highlight the ambiguity in the meaning of “substantially the same.”
The statute is also silent on the question of who would make the determination as to whether an
amended rule or new rule is “substantially the same” as a disapproved rule. Congress could take
action if it determined that a reissued or new rule was substantially the same as the disapproved
rule, since the reissued or new rule would also be subject to the CRA.137 The CRA precludes
judicial review of any “determination, finding, action, or omission” under the act.138 The
prevailing interpretation of this provision is that it prohibits judicial review of any question
arising under the CRA and “denies courts the power to void rules on the basis of agency
noncompliance with the [CRA].”139 Based on this interpretation, it may be unlikely that a court

133 5 U.S.C. §801(b)(1).
134 5 U.S.C. §801(f).
135 5 U.S.C. §801(b)(2). Nevertheless, it does not appear that Congress intended that all disapproved rules would
require additional statutory authorization before further agency action on the same subject could take place. For
example, where a statute or court order establishes a deadline for promulgating rules, an enacted CRA joint resolution
of disapproval will not prohibit the agency from future issuance of rules governed by the deadline. Instead, the CRA
extends the deadline for one year from the enactment of the joint resolution of disapproval. 5 U.S.C. §803.
136 Even the post-enactment legislative history, which is of limited legal value in interpreting a statute, does not shed
light on the meaning of “substantially the same.” Nor is there a particular definition of “substantially the same” in the
U.S. Code that would apply to this section. The code contains over 270 provisions that include the terms “substantially
similar” or “substantially the same.” See, e.g., 15 U.S.C. §57a; 26 U.S.C. §§83, 168, 246; 49 U.S.C. §§30141, 30166.
At least one other law has prohibited an agency from issuing “substantially similar” regulations, which also remains
undefined in the text. Federal Trade Commission Improvements Act of 1980, P.L. 96-252, 94 Stat. 391-92.
137 Congress could also revoke a rule and/or prevent an agency from promulgating future rules by statute through the
regular legislative process.
138 5 U.S.C. §805.
139 Montanans for Multiple Use v. Barbouletos, 568 F.3d 225, 229 (D.C. Cir. 2009). See also Via Christi Reg'l Med.
Ctr. v. Leavitt, 509 F.3d 1259, 1271 n.11 (10th Cir. 2007); United States v. Carlson, 2013 U.S. Dist. LEXIS 130893 (D.
Minn. 2013); United States v. Ameren Mo., 2012 U.S. Dist. LEXIS 95065 (E.D. Mo. 2012); Forsyth Mem'l Hosp. v.
Seblius, 667 F. Supp. 2d 143, 150 (D.D.C. 2009); Provena Hosps. v. Sebelius, 662 F. Supp. 2d 140, 154-55 (D.D.C.
2009); New York v. Am. Elec. Power Serv. Corp., 2006 U.S. Dist. LEXIS 32829 (S.D. Ohio 2006); United States v.
Am. Elec. Power Serv. Corp., 218 F. Supp. 2d 931, 949 (S.D. Ohio 2002); Tex. Savings & Cmty. Bankers Assoc. v.
Fed. Hous. Fin. Bd., 1998 U.S. Dist. LEXIS 13470, *27 (W.D. Tex. 1998). One federal district court reached a contrary
(continued...)
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will determine that it has the authority to decide whether a rule violates the CRA’s “substantially
the same” prohibition. Therefore, one could argue that evaluating whether this prohibition has
been violated may be a matter for Congress alone to decide.
Q: What other steps might Congress take to overturn or modify the rule?
A: In addition to joint resolutions of disapproval under the CRA, Congress has considered
freestanding legislation or legislation that amends the Clean Air Act in a targeted way.140 In the
114th Congress, the House has passed H.R. 2042, which would delay the date on which state
implementation plans must be submitted to EPA and the compliance date of GHG emission
standards for EGUs by a period of time equal to the time required for the completion of judicial
review. The bill would also allow a state to opt out of compliance if the governor determines that
the rule would have an adverse effect on ratepayers or have a significant adverse effect on the
reliability of the state’s electricity system.
S. 1324, as reported by the Senate Environment and Public Works Committee, contains similar
provisions. In addition, it would prohibit EPA from regulating under Section 111(d) any category
of existing sources regulated under the hazardous air pollutant authorities of Section 112, which
would include EGUs. It would also revoke the NSPSs for EGUs promulgated under Section
111(b) and would set additional requirements for any future EGU standards issued under that
authority.
Bills such as H.R. 2042 and S. 1324 face the same obstacle as a CRA joint resolution of
disapproval (i.e., being subject to a presidential veto); in addition, they would likely need 60
votes to be considered on the Senate floor.
Another option that Congress could use to delay or rescind the CPP would be to place an
amendment, or “rider,” on EPA’s appropriation bill to prevent funds from being used to
implement the rule. In comparison to a CRA joint resolution of disapproval or freestanding
legislation, addressing the issue through an amendment to the EPA appropriation may be
considered easier. The overall appropriation bill to which it would be attached (possibly an
omnibus appropriation covering a large portion of the federal government) would presumably
contain other elements that would make it more difficult to veto.
Addressing climate change through the CPP and other Clean Air Act regulations is among the
President’s highest priorities, however, making it likely that the President would veto any
appropriation bill that prohibits implementation of the CPP.

(...continued)
conclusion, ruling that the CRA’s judicial review provision precludes “judicial review of Congress' own
determinations, findings, actions, or omissions made under the CRA after a rule has been submitted to it for review.”
United States v. S. Ind. Gas & Elec. Comp., 2002 U.S. Dist. LEXIS 20936, *13 (S.D. Ind. 2002) (emphasis added). For
more information on this provision, see CRS Report R43992, The Congressional Review Act: Frequently Asked
Questions
, by Maeve P. Carey, Alissa M. Dolan, and Christopher M. Davis.
140 For a broad discussion of congressional options for addressing EPA’s GHG regulations, see CRS Report R41212,
EPA Regulation of Greenhouse Gases: Congressional Responses and Options, by James E. McCarthy.
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Judicial Review
Q: What parties have joined litigation over the final CPP rule?
A: Parties began filing petitions in the U.S. Court of Appeals for the D.C. Circuit (the “D.C.
Circuit”) challenging the final CPP rule for CO2 from existing power plants starting on the day
the rule was published in the Federal Register.141 CAA Section 307(b) requires that such petitions
for review must be filed in the D.C. Circuit within 60 days after the rule’s publication in the
Federal Register;142 the deadline for petitions for review of the CPP rule was therefore December
22, 2015.
Parties that filed petitions challenging the CPP rule include 27 states. West Virginia and Texas
spearheaded a coalition of 24 state petitioners in filing the lead case; Oklahoma, North Dakota,
and Mississippi filed their own petitions.143 Other petitioners challenging the rule include three
labor unions, a number of rural electric cooperatives and an association representing them, more
than two dozen industry and trade groups, several non-profit public policy organizations, and
more than two dozen fossil-fuel-related companies and local electric utilities. Other fossil fuel-
related companies have moved to intervene on behalf of the petitioners.144 In all, more than a
hundred parties filed more than three dozen petitions challenging the CPP. All of these petitions
have been consolidated into one case, captioned State of West Virginia, et al v. EPA.145
Parties that have intervened in this case in support of EPA and its Administrator include a
coalition of 18 states, the District of Columbia, and five other cities and a county (including some
in states that have filed petitions challenging the CPP).146 Other parties intervening in support of
the CPP include regional, state, and municipal utilities and power companies,147 more than a
dozen non-profit organizations (including environmental organizations), and several energy
industry associations.148 Two former EPA Administrators are supporting the CPP as amici curiae
(non-party “friends of the court”): William Ruckelshaus, who headed the agency in 1970, when
the CAA was enacted, and again in the 1980s; and William Reilly, the EPA Administrator at the

141 See docket for West Virginia, et al v. EPA, No. 15-1363 (D.C. Cir. docketed October 23, 2015); EPA, “Carbon
Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” Final Rule, 80
Federal Register 64661, October 23, 2015.
142 42 U.S.C. §7607(b).
143 See docket for West Virginia, et al v. EPA, No. 15-1363 (D.C. Cir. docketed October 23, 2015). The state parties
opposing the Clean Power Plan include West Virginia, Texas, Alabama, Arizona (Corporation Commission), Arkansas,
Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana (Department of Environmental Quality), Michigan
(Attorney General Bill Schuette), Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina (Department
of Environmental Quality), North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin, and
Wyoming.
144 Ibid. In addition, declarations and other exhibits have also been offered in opposition to the rule by various other
organizations and individuals not participating as petitioners, intervenors, or amici. See ibid.
145 Ibid.
146 Ibid. The state parties supporting EPA include New York, California (and its Air Resources Board), Connecticut,
Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota (via the Minnesota Pollution Control
Agency), New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and Washington. They are joined
by city and local governments, including those of the District of Columbia; Broward County and South Miami, Florida;
Boulder, Colorado; Philadelphia, Pennsylvania; Chicago, Illinois; and New York City, New York.
147 Ibid. The cities of Austin, Texas, and Seattle, Washington, are participating through their municipally owned
utilities.
148 Ibid.
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time Congress passed the Clean Air Act Amendments of 1990.149 A public policy institute and a
local government coalition comprising the National League of Cities, the U.S. Conference of
Mayors, and 14 cities are also supporting the CPP as amici curiae.150
Five states have not joined the litigation: Alaska (which is exempt from the final rule151), Idaho,
Nevada, Pennsylvania, and Tennessee.
Q: What is the status and timeframe of litigation challenging the final CPP
rule, and will the rule be stayed?

A: The D.C. Circuit can stay agency rules pending its decision on the merits. Petitioners filed
motions to stay the CPP soon after they filed their petitions for review.152 A court evaluating a
motion for a stay of a rule will generally weigh four traditional factors: (1) the likelihood that the
moving party will prevail on the merits, (2) the prospect of irreparable injury to the moving party
if relief is withheld, (3) the possibility of harm to other parties if relief is granted, and (4) the
public interest.153 The court will likely decide the motions to stay in early 2016.154 The parties
have also submitted briefs disagreeing over the schedule and procedures for subsequent litigation
events, and the court has yet to determine the schedule for briefing on the merits.155
Once the D.C. Circuit issues a judgment,156 a dissatisfied party may move the court to reconsider
its decision and may seek Supreme Court review.157
Q: What legal arguments are being made for and against the final CPP rule?
A: This report does not aim to provide a comprehensive preview of the legal arguments for or
against EPA’s CPP rule as the litigation proceeds. However, the bullet points below offer a few
examples, drawn from litigation filings158 and EPA documents, to illustrate the range of potential
issues.

149 Ibid.
150 Ibid.
151 See EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating
Units,” Final Rule, 80 Federal Register 64661, 64664, October 23, 2015: “Because the EPA does not possess all of the
information or analytical tools needed to quantify the BSER for the two non-contiguous states with otherwise affected
EGUs (Alaska and Hawaii) and the two U.S. territories with otherwise affected EGUs (Guam and Puerto Rico), these
emission guidelines do not apply to those areas, and those areas will not be required to submit state plans on the
schedule required by this final action.”
152 See docket for West Virginia, et al v. EPA, No. 15-1363 (D.C. Cir. docketed October 23, 2015).
153 See Virginia Petroleum Jobbers v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958); D.C. Circuit Rule 18.
154 See clerk’s order, West Virginia, et al v. EPA, No. 15-1363 (D.C. Cir. November 30, 2015).
155 See docket for West Virginia, et al v. EPA, No. 15-1363 (D.C. Cir. docketed October 23, 2015).
156 Supreme Court review of a grant or denial of a stay or other pre-judgment order may be sought, but a “petition for a
writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court,
will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from
normal appellate practice and to require immediate determination in this Court.” Rule 11, Rules of the Supreme Court
of the United States
.
157 See Fed. R. App. P. 35, 40; Rules of the Supreme Court of the United States, R. 10-14 (2013).
158 In particular, pursuant to the court’s order dated November 30, 2015, petitioners submitted nonbinding statements of
issues to be raised in the proceeding. See generally Statements of Issues filed by various Petitioners, docket for West
Virginia, et al v. EPA, No. 15-1363 (D.C. Cir. docketed October 23, 2015).
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 Petitioners challenging the rule have argued that EPA lacks authority under CAA
Section 111(d) to regulate CO2 from power plants because power plants, as a
source category, are already regulated for HAP under CAA Section 112.159 As
noted above, EPA has interpreted Section 111(d) as requiring regulation of CO2
from existing power plants because CO2 is not a HAP, and other conditions for
regulation under Section 111(d) are met.160
 Petitioners have also challenged EPA’s design of the CPP as exceeding EPA’s
scope of authority under Section 111(d).161 They have argued, for example, that it
authorizes EPA to require only measures that can be applied to an individual
source’s performance by the source’s owner or operator (“inside the fence line”),
such as adoption of pollution control devices or other design or operational
standards.162 Conversely, they say, it does not authorize what they characterize as
a reorganization of the nation’s electric grid or states’ energy economies.163 EPA
has countered, in part, that “the phrase ‘system of emission reduction’ … is
capacious enough to include actions taken by the owner/operator of a stationary
source designed to reduce emissions from that affected source, including actions
that may occur off-site and actions that a third party takes pursuant to a
commercial relationship with the owner/operator.”164
 Various petitioners challenge different technical or programmatic aspects of the
rule as arbitrary, capricious, an abuse of agency discretion, or otherwise not in
accordance with law, pursuant to the judicial review provisions of Section 307 of
the CAA.165 EPA responded to numerous comments along these lines in its rule
preamble, Response to Comments documents, and other technical support
documents as well as in its response in opposition to the motions to stay.166

159 See, e.g., State Petitioners’ Motion for Stay and for Expedited Consideration of Petition for Review at 11-15, West
Virginia, et al v. EPA, No. 15-1363 (D.C. Cir. filed October 23, 2015) (hereinafter “States’ Motion for Stay”).
160 EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,”
Final Rule, 80 Federal Register 64661, 64710-64715, October 23, 2015; Respondent EPA’s Opposition to Motions to
Stay Final Rule at 37-43, West Virginia, et al v. EPA, No. 15-1363 (D.C. Cir. filed October 23, 2015) (hereinafter
“EPA Opposition to Stay”); see also above, “Q: What does Section 111(d), the authority EPA cites for the CPP, bar
EPA from regulating?”

161 See generally Statements of Issues filed by various Petitioners, docket for West Virginia, et al v. EPA, No. 15-1363
(D.C. Cir. docketed October 23, 2015).
162 See, e.g., States’ Motion for Stay, at 6 (see footnote 159).
163 E.g., Coal Industry Motion for Stay, at 9-11, West Virginia, et al v. EPA, No. 15-1363 (D.C. Cir. filed October 23,
2015); see also, e.g., CRS Legal Sidebar WSLG1360, EPA's Clean Power Plan: Likely Legal Challenges - Part 2, by
Robert Meltz and Alexandra M. Wyatt.
164 EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,”
Final Rule, 80 Federal Register 64761, October 23, 2015. See also EPA Opposition to Stay, at 11-37 (see footnote
159).
165 See generally Statements of Issues filed by various Petitioners, docket for West Virginia, et al v. EPA, No. 15-1363
(D.C. Cir. docketed October 23, 2015) (raising issues such as the degree to which the rule allows states to consider the
remaining useful life of existing sources, EPA’s consideration of different coal types, availability of particular
measures under the mass-based and rate-based approaches, and state-specific issues).
166 See generally EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility
Generating Units,” Final Rule, 80 Federal Register 64661, October 23, 2015; EPA’s Responses to Public Comments on
the EPA’s Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units
(August 2015), http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2013-0602-37106 (hereinafter “EPA
RTC”); EPA, “Clean Power Plan Final Rule Technical Documents (2015),” http://www2.epa.gov/cleanpowerplan/
clean-power-plan-final-rule-technical-documents; EPA Opposition to Stay (see footnote 160).
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 The parties also debate the standards by which a court should evaluate EPA’s
interpretation and implementation of CAA Section 111.167 Under Chevron v.
Natural Resources Defense Council, Inc.
, a court reviewing an agency rule defers
to the agency’s interpretation of a statute if the agency’s interpretation is
reasonable.168 In the 2014 Utility Air Regulatory Group v. EPA decision, however,
the Supreme Court opined that where a statutory interpretation by EPA “would
bring about an enormous ... expansion in EPA’s regulatory authority”—which
some petitioners say the CPP rule would do—a court should demand “clear
congressional authorization.”169
 Some petitioners have argued for CAA Section 111(d) to be interpreted more
narrowly than EPA interprets it so as to avoid certain constitutional issues.170 For
example, states and other petitioners have argued that the CPP impermissibly
invades traditional state police powers over the electrical grid and commandeers
state legislatures.171 EPA has previewed its responses to such arguments in its
Response to Comments and other documents and in its response in opposition to
the motions to stay.172 EPA calls the rule a “textbook example of cooperative
federalism”173 and argues that states can opt to do nothing, in which case the
federal plan option imposes no new regulatory obligations on states.174
 Some challengers have disputed the adequacy of certain other procedural aspects
of the issuance of the rule, alleging impermissible deviation from the proposed
rule175 or impermissible ex parte contacts.176 Supporters of the rule assert that the
final rule is a logical outgrowth of the proposal and comments and that EPA
properly followed all other procedural requirements.177
These and other arguments are likely to be further developed as the litigation proceeds.

167 See, e.g., States’ Motion for Stay, at 6 (see footnote 159); Coal Industry Motion for Stay, at 9-11 (see footnote 163);
EPA Opposition to Stay, at 27 (see footnote 160).
168 Chevron vs. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984).
169 Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014). See also, e.g., CRS Legal Sidebar WSLG1315,
What Does King v. Burwell Mean for Chevron?, by Daniel T. Shedd.
170 Intervenor Peabody Energy has stated that the Clean Power Plan raises a number of issues under the U.S.
Constitution. It has argued, for example, that the rule’s relation to states raises federalism issues under the 10th
Amendment, that it amounts to agency lawmaking and raises separation of powers issues under Articles I and II, and
that it raises just compensation issues under the 5th Amendment. See Peabody Energy Corp.’s Motion for Stay, West
Virginia, et al v. EPA, No. 15-1363 (D.C. Cir. November 5, 2015)
171 States’ Motion for Stay, at 9 (see footnote 159); Oklahoma’s Motion for Stay at 7-20, West Virginia, et al v. EPA,
No. 15-1363 (D.C. Cir. October 28, 2015); Statements of Issues filed by various Petitioners, docket for West Virginia,
et al v. EPA, No. 15-1363 (D.C. Cir. docketed October 23, 2015).
172 See EPA RTC, at 193-194 (see footnote 166); EPA Opposition to Stay, at 43-50 (see footnote 160).
173 EPA Opposition to Stay, at 44 (see footnote 160).
174 Ibid. at 46-47; see also, e.g., State Intervenors’ Opposition to Petitioners’ Motions for a Stay at 2-11, West Virginia,
et al v. EPA, No. 15-1363 (D.C. Cir. December 8, 2015).
175 North Dakota’s Motion for Stay at 18-19, West Virginia, et al v. EPA, No. 15-1363 (D.C. Cir. filed October 29,
2015); generally Statements of Issues filed by various Petitioners, docket for West Virginia, et al v. EPA, No. 15-1363
(D.C. Cir. docketed October 23, 2015).
176 Energy & Environment Legal Institute Petitioners’ Response in Support of Motions to Stay, West Virginia, et al v.
EPA, No. 15-1363 (D.C. Cir. filed November 5, 2015).
177 See, e.g., EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating
Units,” Final Rule, 80 Federal Register 64840-64850, October 23, 2015; EPA Opposition to Stay, at 62-63 (see
footnote 160).
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Q: Might other litigation affect the final CPP rule?
A: In addition to the direct legal challenge to the CPP rule for CO2 from existing power plants, 25
states, led by North Dakota and West Virginia, have filed petitions challenging EPA’s final NSPS
rule for CO2 from new, modified, or reconstructed power plants.178 They have been joined by
other petitioners including a labor union, a rural electric cooperatives association, several other
fossil-fuel-related companies and utilities, and several industry and trade groups. Most of the
states and a number of the non-profit organizations that intervened in support of the CPP case also
intervened in the NSPS challenge in support of EPA.179 As noted above, the finalization of NSPS
for new air pollutant sources under Section 111(b) of the CAA is a prerequisite for the use of
authority under Section 111(d) to regulate existing sources, so this litigation could threaten EPA’s
basis for the CPP.
For Further Information
Q: Who are the CRS contacts for questions regarding this rule?
A: CRS analysts, listed below, cover areas related to the proposed rule.
Area of Expertise
Name
Phone
Email
Clean Air Act
Jim McCarthy
7-7225
jmccarthy@crs.loc.gov
Legal issues
Alexandra Wyatt
7-0816
awyatt@crs.loc.gov
Climate change
Jane Leggett
7-9525
jaleggett@crs.loc.gov
State GHG emission programs
Jonathan Ramseur
7-7919
jramseur@crs.loc.gov
Carbon capture and sequestration
Pete Folger
7-1517
pfolger@crs.loc.gov
Electric utilities
Richard Campbell
7-7905
rcampbell@crs.loc.gov
Regulatory process
Maeve Carey
7-7775
mcarey@crs.loc.gov
Congressional Review Act
Alissa Dolan
7-8433
adolan@crs.loc.gov
Biomass/Bioenergy
Kelsi Bracmort
7-7283
kbracmort@crs.loc.gov



178 See generally docket for North Dakota v. EPA, No. 15-1381 (D.C. Cir. filed October 23, 2015). Colorado and New
Jersey did not join the coalition of states challenging the NSPS rule.
179 Ibid.
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EPA’s Clean Power Plan for Existing Power Plants: Frequently Asked Questions

Author Contact Information

James E. McCarthy
Alexandra M. Wyatt
Specialist in Environmental Policy
Legislative Attorney
jmccarthy@crs.loc.gov, 7-7225
awyatt@crs.loc.gov, 7-0816
Jonathan L. Ramseur
Alissa M. Dolan
Specialist in Environmental Policy
Legislative Attorney
jramseur@crs.loc.gov, 7-7919
adolan@crs.loc.gov, 7-8433
Jane A. Leggett

Specialist in Energy and Environmental Policy
jaleggett@crs.loc.gov, 7-9525

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