Fox, 25 other state attorneys object to EPA’s move on Clean Energy Incentive Program

November 4, 2016 GMT

HELENA — Attorney General Tim Fox, along with 25 other state attorneys general sent a letter criticizing the Environmental Protection Agency this week, alleging the agency is ignoring the U.S. Supreme Court’s stay of the Clean Power Plan.

Montana’s five-member, all-Republican PSC, two other state public utility commissions and four state environmental quality departments also signed the letter.

Earlier this year Fox joined with other states in challenging the EPA’s carbon regulations, which would require Montana to reduce carbon emissions by more than 40 percent.

Gov. Steve Bullock, a Democrat, supported Fox’s decision, saying the EPA had “moved the goal posts” when issuing its final Clean Power Plan, which requires Montana to reduce its emissions by more than any other state and more than first proposed.


That lawsuit resulted in the U.S. Supreme Court issuing an injunction on implementation of the Clean Power Plan until legal challenges have concluded.

A press release from Fox’s office Wednesday said that the EPA is moving forward with a rulemaking process for the Clean Energy Incentive Program, a component of the larger plan, in direct violation of the Supreme Court’s stay.

“By moving forward with this rulemaking, EPA has ignored explicit instruction from the court, throwing years of well-established case law out the window,” Fox said. “It is unacceptable for the EPA to flout the rule of law and treat our nation’s highest court in this manner, and for the sake of preserving the integrity of the institution, I encourage the agency officials to rethink their actions.”

The Clean Energy Incentive Program is a regulatory mechanism used to create an incentive for renewable energy development across the country by providing emission reduction credits that count toward states’ carbon reduction goals.

Fox’s press release said the program’s existence is dependent on the full regulation being upheld in court and the EPA cannot adopt a regulation to implement another regulation that has been stayed by the federal court.

In representing EPA before the court, the U.S. Solicitor General argued that the Supreme Court’s stay would require EPA to halt any further rulemaking action, stating “implementation of each sequential step mandated by the Rule would be substantially delayed” if the carbon regulations were stayed but ultimately upheld.

A study released by the Bureau of Business and Economic Research at the University of Montana in 2015 said that to meet requirements laid out in the plan, Montana’s largest coal-fired power plant in Colstrip would have to operate just one and a half of its four units.


Economist Patrick Barkey told the Missoulian at the time that wouldn’t make economic sense. Since then, Colstrip operator Talen Energy has said it will close two of the plant’s four units by 2022 as part of a settlement over emissions filed by the Sierra Club and Montana Environmental Information Center.

Also Wednesday, State Sen. Doug Kary, R-Billings, sent a letter to Bullock requesting copies of public records about the impending closure of the two older units, specifically rumors that Talen or its parent company, Riverstone Holdings, plans to shutter the units earlier than previously announced.

U.S. Sen. Steve Daines sent a letter to Talen CEO Paul Farr last week asking Farr to disclose any plans to shut down Units 1 and 2 in 2017 and asking if the state was aware of Talen’s plans.

The Gazette requested the same communication, if any exists, from Bullock’s office last Friday.