EPA’s Clean Power Plan: A Regional Analysis

by K&L Gates LLP

EPA’s recently issued Clean Power Plan (“CPP” or “Plan”) affects every state differently. The Plan has a decidedly nationwide impact—reducing the United States’ power plant greenhouse gas emissions 32 percent by the year 2030. But the Plan functions entirely on a state-by-state level, treating each state in a different way based on its unique emissions profile. In this way, the Plan seeks to harness the power of federalism to achieve its ambitious goals.

While the target-based approach is in some ways similar to the structure of EPA’s National Ambient Air Quality Standards (NAAQS), the CPP has revised and reordered certain elements, and has modified the targets for carbon dioxide (CO2) reductions required by individual states. Although NAAQS are set on a nationwide basis, under the CPP every state has a different carbon target based on a calculus that includes the state’s emissions profile and energy mix. Thus, some states (like Montana and West Virginia) are subject to greater emission reductions than other states (like Idaho and Maine). And while states have some flexibility to determine how to meet their targets, the devil will be in the details, as evidenced by EPA’s compliance pathway chart.

The varying state plans will be key to how the CPP will impact industry. The differences are important for state regulators and industry leaders to understand as they will drive the pace and rate of policy change, the on-the-ground implications for energy markets, and potential regional cooperation. Given the interconnectedness of our electrical grid, impacts in some states will be felt in others. In many cases, a burden imposed on one state represents an opportunity for another. It is also possible that states will participate in regional plans that will affect energy producers by, for example, allowing them to trade emissions credits across state lines, and energy consumers, by potentially normalizing rate increase burdens across larger geographical sectors.

These state plans are being crafted in the shadow of what is expected to be lengthy litigation. The first move involved 15 states seeking an emergency stay of the Plan. [1] You can read the petition here. The D.C. Circuit denied the request on September 9th, but interested parties should expect additional lawsuits as states begin working on their plans.

Read below for an analysis of how each of the country’s different regions will be affected by the Plan. [2]

1. The Northeast Region
Some governors and environmental agency heads in the Northeast—all of which at one point in time were members of the Regional Greenhouse Gas Initiative (“RGGI”) [3]— publicly support the CPP and have, for the most part, expressed confidence in their states’ abilities to meet the Plan’s stated goals. This is despite the fact that all but one of the states in the region are burdened with some of the more stringent goals for CO2 emissions under the Plan. [4] Using a rate-based goal approach, state goals nationwide fall in a range between 771 lbs/MWh on the low end (for states with only natural gas plants) to 1,305 lbs/MWh on the high end (for states with only coal and oil plants). The average 2030 goal for the seven states in the Northeast region that come within the CPP’s reach [5] is 821 lbs/MWh—a goal that is on the low end of this range. 

Leaders in the Northeast appear optimistic about meeting CPP targets because state efforts across the region for reducing CO2 emissions are already under way. For example, before the final rule was announced, New York already had a plan in place to cut greenhouse gases 80 percent by the year 2050. [6] Similarly, the majority of Rhode Island’s electric generators burn gas, which emits about half the CO2 of coal, and the state has begun looking increasingly toward renewable generation with the construction of the nation’s first offshore wind farm near Block Island. [7] Government support for the CPP from the northernmost states is nearly unanimous, with Vermont being exempted from the Plan entirely because of its already-low carbon emissions and the absence of any coal-fired plants in the state. [8] Maine recently announced that it is well on its way to meeting the Plan’s goals, in part because of energy policies implemented eight years ago. [9] Likewise, New Hampshire has expressed confidence that its membership in the RGGI will translate into compliance with the CPP. [10] Supporters in New Hampshire concede, however, that the CPP is likely to raise electricity rates in New Hampshire during the short term, “partly by prodding the closure of some polluting power plants that are cheap to operate.” [11]

However, the Plan still has its critics in the Northeast.  States with a comparatively larger number of coal-fired plants in the region, such as New Jersey, [12] have already challenged the EPA’s adoption of the rule. [13] New Jersey recently requested that EPA stay the implementation of the CPP. [14] One analyst has predicted that at least one New Jersey-based company could suffer major profit losses because the “majority of its electricity comes from coal plants that are in EPA’s cross hairs.” [15] Densely populated states such as New Jersey, however, will be allowed to “increase the amount of pollution they produce in 2030, compared with 2012, as their populations increase.” [16] Whether this serves to alleviate some of the burdens imposed by the CPP remains to be seen.

Experts have also generally cautioned that companies selling electricity into the deregulated markets of this region, specifically in New York and New England and certain mid-Atlantic states, will face the biggest challenges “in part because they cannot recoup costs through regulatory rulings.” [17] In deregulated markets, generators must typically recover their costs through the organized electricity markets or through bilateral agreements. Therefore, generators will have some exposure and will only be able to recover their CPP-related costs if market prices allow it. Increased costs could create opportunities for other types of generation and technology to compete in the markets. In sections of the country where generation is still regulated and costs are recovered through a state-regulated rate, generators may be able to seek to include costs to comply with the CPP in their regulated rates. However, generators’ ability to include CPP-related costs in their regulated rates would likely depend on the particular state’s position on the CPP and its inclination to allow the generators to do so. Because of the support coming from the state governments in this region, industry participants with offices in the Northeast—especially in the northernmost states in the region—should not expect challenges to the CPP at the state level. Instead, industry participants conducting operations in this region may decide to challenge the EPA’s rule independently.

2. Mid-Continent Coal-Dependent States
The Plan will have deep and long-lasting impacts on a group of states in the middle of the continent that includes Kentucky, Pennsylvania, Ohio, Indiana, and West Virginia. Of these five states, four (all except Pennsylvania) joined 11 other states in filing the emergency stay petition in federal court. This opposition to the Plan is largely traceable to the fact that these states are deeply involved in the coal industry through both mining and coal-fired electricity generation. In some of these states, entire communities depend on coal for their livelihood.

In Kentucky, the final rule was met with significant opposition from state political leaders after Kentucky’s targets increased dramatically from the proposed rule to the final rule. [18] Kentucky must reduce its emissions rate by more than 40 percent or lower its total carbon dioxide emissions from 91.3 million to 63.1 million tons by 2030. [19] Kentucky is already struggling with a steep decline in coal-related jobs in recent years and is now expected to face even more job loss.

The response in Pennsylvania has been more measured. Pennsylvania has 78 coal-fired power plants and faces a 33.3% reduction target, so there is no doubt that the Plan will affect the state’s economy.  Pennsylvania’s Democratic Governor is “committed to making the Clean Power Plan work” and has not joined in the emergency stay petition opposing the Plan, [20] although any implementation plan to be adopted in Pennsylvania under the Clean Power Plan is subject to legislation adopted in 2014 that will require review by the GOP-controlled legislature.

Ohio, Indiana, and West Virginia are united in their opposition to the Plan. In Ohio, some critics have argued that the state’s goals are unattainable. [21] And although this claim is the subject of intense debate, it underscores the potential difficulty that coal-dependent states will have in complying with the Plan. Many of them will have to reshape their energy markets in order to unwind their dependence on coal. Indiana has “one of the least stringent” emissions targets in the nation, but Governor Mike Pence may refuse to comply with the Plan, [22] arguing that it will increase electricity rates in Indiana. Likewise, West Virginia officials emerged as leading voices for states to ignore EPA’s requirements even before the Obama Administration released the final version of the Plan. [23] West Virginia Sen. Shelley Moore Capito has proposed legislation in the U.S. Senate that would allow state governors to opt out of the program and permit the EPA to mandate only technology-based emissions controls with at least one year of demonstrated effectiveness. [24] West Virginia faces a 37 percent emissions reduction target—up 10 percent from the proposed rule, and appears fully committed to fighting the rule. At the same time, West Virginia regulators are now considering whether to put all their chips in a litigation strategy or hedge their bets by simultaneously creating a state plan in order to avoid being subject to the federal plan. [25]

3. The Southeast Region
Many southeastern states face some of the more stringent emissions rates and emissions mass reduction goals under the CPP of all the 47 states the Plan covers. For example, Maryland must reduce its carbon dioxide emissions rate by approximately 37 percent by 2030. [26] Tennessee must lower its carbon dioxide emissions rate by nearly 40 percent. [27] Other states, like Florida and Virginia, do not face especially onerous emissions goals but will nevertheless have to take action to meet their targets. For example, while some experts believe that Florida may be well-positioned to accept the challenges presented by the CPP, others note that there is “lots of work... ahead” for coal-fired plants in the state. [28] The atmosphere is similar in Virginia. While some state leaders believe that Virginia may have little difficulty meeting its goals as a result of an almost-decadelong effort to reduce pollution that is already in place, others view the CPP as a “threat to Virginia’s ‘struggling economy,’” and have urged the governor to delay implementation until judicial challenges to the CPP have run their course. [29]

Given the administrative headaches and significant expense associated with reaching these goals, it is not surprising that several southeastern states have announced their intention to challenge the legality of the CPP. Several southeastern states joined the request to stay the rulemaking pending the outcome of judicial challenges. [30]

The region’s reliance on legacy coal generating assets, coupled with skepticism toward federal regulation of environmental issues, suggests that the Southeast will remain at the forefront of any challenge to the CPP.

4. The West Coast and Intermountain West Regions
The Clean Power Plan will have a broad range of impacts across the West Coast and the Intermountain West regions, and the expected effects vary widely by region and by state.

The West Coast states are optimistic about their ability to comply with the Plan. California has virtually eliminated coal from its energy mix and has been a national leader in cutting greenhouse gas emissions. California hopes that the rule will boost its economy through increased interest in energy efficiency and renewable energy. The Plan was welcomed by Governor Jerry Brown as a “bold and absolutely necessary” step. [31]

Oregon’s emissions target was reduced from 48 percent in the proposed rule to 20 percent in the final rule, placing the final target below the state’s previously adopted statewide emissions reductions goals. The chairman of Oregon’s Global Warming Commission lauded the final rule, stating that “[t]he targets and the incentives that EPA is putting in are exactly the kind of things that Oregon utilities, that our institutions are really good at taking advantage of.” [32]

The situation is similar in Washington, where state regulators are hopeful that the state can meet its emissions targets largely by complying with existing law. In large part, this is due to the fact that Washington’s only remaining coal-fired power plant is scheduled to be shut down entirely by 2025, and Washington’s existing laws on carbon emissions are reasonably aggressive. [33]

The same is true in some, but not all, of the Intermountain West states. Nevada, for example, is believed to be on its way to meeting its targets and has visions of riding the wave of anticipated demand for renewables to become a net energy exporter. [34] Some reports have Colorado being as much as 75 percent of the way toward meeting its target, but the state will still need to take some action due to the fact that roughly half of its energy came from coal in 2014. [35] Colorado also has untapped renewable potential that the state is already moving to utilize.

The situation is more complicated in other Mountain West states. For example, Montana and Wyoming have been identified as two of the “biggest losers” under the final version of the Plan, with their emissions targets more than doubling from the draft rule.  In Montana, this places significant pressure on large coal plants and increases the likelihood that they may need to be shut down. [36] In Wyoming, major changes will need to be made because 90 percent of the state’s energy came from coal in 2013. On the other hand, states like Montana, Utah, and Wyoming are believed to have huge untapped potential for renewable energy, especially wind power. These states are therefore also well-positioned to benefit as the energy grid undergoes a nationwide transition from fossil fuel-fired electricity generation to renewables.

Meanwhile, Arizona and Utah are leading the charge to oppose the Plan. Arizona’s Attorney General signed onto a letter sent by 16 states requesting that EPA stay the rule. [37] Arizona faces a 52 percent emissions reduction target due to its widespread coal- and gas-fired electricity generation. Utah is a signatory to the letter as well.  Idaho has one of the lowest emissions targets nationwide at 10 percent, but has limited options for making reductions. [38]

Tribal interests are also affected. The Navajo Nation faces closure of coal-fired plants and coal mines in Arizona and Utah, foreclosing a major revenue source for the tribe.

There does not currently appear to be any regional plan in the works for the West Coast and Intermountain West regions. However, according to some sources, there is a movement to create individual state plans with common measurement and tracking systems. This would facilitate trading between states even in the absence of a regional plan, and it could help energy-interconnected western states avoid reliability problems and rate increases. This may be attractive to multistate utilities that own power-generating facilities across multiple western states.

5. Texas and Mid-Central South
Texas has been vocal in its opposition to the Plan. The same day the Plan was released, Texas Governor Greg Abbott staked out his opposition with a sharply worded press release criticizing the Obama Administration’s “unilateral executive overreach,” which he said is “threatening the free-market principles this country was founded on.” [39]

Texas’ opposition is in some respects understandable. Texas has relatively stringent emissions reduction requirements, so some stakeholders are challenging some of EPA’s assumptions in calculating its target. In addition, Texas anticipates facing capacity and reliability problems, as predicted by the North American Electric Reliability Corporation’s approved reliability entity, responsible for 90 percent of the users in the state of Texas (the Energy Reliability Council of Texas or “ERCOT”) based on the Plan as proposed. Many people have questioned whether Texas can achieve its targets at all. Texas has a robust natural gas industry that would have benefitted under the draft Plan. However, the State now anticipates that the Plan will result in changes to power dispatch protocols that will constrain these benefits. Texas’ prospects of achieving compliance will be the subject of heated debate in the coming months and years.

Reactions are similar in Oklahoma and Louisiana, both of which had joined earlier legal challenges to the rule and are considering further legal action. Though both states, like Texas, are top natural gas producers, changes in the final Plan meant to slow a rush to natural gas now make it more difficult for either state to meet their targets.

Arkansas, dependent on coal for over half of its electricity in 2013 [40] and facing a nearly 38 percent reduction, is walking the line. Republican Governor Asa Hutchinson vowed to continue fighting the final rule while also promising to work with industries and consumers to determine a lowest cost option to compliance. [41]

6. Midwest
Midwestern states have some of the highest percentages in terms of required reductions under the Plan, as well as some of the greatest variables when it comes to the resources used to generate electricity.

In the upper Midwest, which is rich in wind and sun and with already-established renewable portfolios, states are generally on track to meet the Plan’s targets. For example, Minnesota’s aggressive renewable energy standard had already closed more than a dozen coal-fired electric plants. Minnesota still gets about 55 percent of its electricity from coal, but utilities will be able to keep cutting emissions by adding more wind power, and the state expects to generate 28.5 percent of its power from renewable sources by 2030. [42] In Iowa, where wind energy already makes up more than 28 percent of the state’s electricity production, EPA projected that even without the Plan, the state would surpass its 2027 emissions target by 2020.

Michigan is more conflicted. With its existing 10 percent renewable energy standard and energy efficiency mandate, together with a proposed plan for low-carbon power investment and energy waste reduction, [43] initial state assessment of the final Plan indicated that Michigan could meet its 39.4 percent reduction target. However, citing concerns regarding increased electricity costs and job loss from one of the oldest coal-fired power fleets in the country, the state joined the petition seeking an emergency stay of the CPP until the legality of the rule is determined.

Coal-heavy Kansas faces a 43 percent reduction in its carbon emissions rate, a 19 percent increase from the proposed rule. While the state has made major recent gains in wind production, it does not have natural gas combined-cycle units subject to the Plan to see it through a ramp-up to renewables. The state’s Department of Health has stated that it believes the Plan is unattainable, and Governor Brownback is now reconsidering whether to “just say no” in light of the significant change for the state.

Similarly, North Dakota saw its emission reduction goals increase dramatically in the final rule, which is one of the steepest cuts in the nation at 44.9 percent. [44] Achieving this cut will likely lead to closing coal plants, but with only 15 percent of its generation from wind power, the state will need to sharply increase that supply to reach its target. [45] Even with an increase, the state and its neighbor to the south are disadvantaged because the Plan awards renewable energy credits based on where the power is used rather than on the location of its generation, and both North and South Dakota ship wind and hydro power out of state.

In midwestern states that are either heavily coal-dependent or without effective renewable portfolios, such as Wisconsin and Nebraska, state officials have petitioned for an emergency stay of the CPP, and are considering renewed legal action questioning EPA’s authority to adopt the regulations and/or joining the “just say no” campaign in its refusal to implement state plans. [46]

Despite the varying impacts and reactions, some midwestern states had already begun planning for a regional trading platform to reduce the cost of compliance, even before the final rule made this easier with its national standard and explicit encouragement for these platforms. [47] Other commentators have noted that energy efficiency may be the most cost-effective way for Midwest states to meet targets, with estimates at an average of $14 per megawatt hour. [48]

For some states, compliance with the Plan is simply a matter of following existing state laws, targets, and emissions reduction plans. For other states, the measures required will involve tough decisions with real economic impact, and political opposition will be a substantial roadblock to achieving the Plan’s goals. And for many of the remaining states, the road ahead will be defined by balancing antipathy with support, challenges with opportunities, and costs weighed against benefits as the energy mix across the country continues to transform.

The authors thank R. Timothy Weston, William M. Keyser, William H. Holmes, James E. Scheuermann, Molly Suda, and Ankur K. Tohan for their assistance with this alert.


[1] The states that signed onto this petition are from all around the nation: West Virginia, Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, Wisconsin, and Wyoming.

[2] One notable feature of the Plan is that many of its targets and measurements are based on electricity generation, not electricity consumption. This means that the Plan affects states that are net energy importers differently from states that are net energy exporters.

[3] The RGGI is a market-based regional cap-and-trade program designed to reduce CO2 emissions from the power sector. Regional Greenhouse Gas Initiative, About the Regional Greenhouse Gas Initiative (RGGI), http://www.rggi.org/docs/Documents/RGGI_Fact_Sheet.pdf. “Since its founding, emissions in the RGGI states have decreased by 40 percent as they have transitioned from coal to natural gas as their primary fuel source for power.” Alex Kuffner, Rhode Island Leaders Applauding Obama’s Clean Power Plan, Providence Journal (Aug. 3, 2015), http://www.providencejournal.com/article/20150803/NEWS/150809769. Current members include Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, and Rhode Island. Id. New Jersey opted out of the RGGI in 2011. Scott Fallon, Exiting Greenhouse Pact Said to Cost N.J. $114M, NorthJersey.com (Sept. 9, 2014).  

[4] Connecticut, Rhode Island, New Hampshire, Maine, Massachusetts, and New Jersey have some of the “more stringent” state goals, while New York is the only state in the region to have one of the “moderate” state goals. See, e.g., EPA, Clean Power Plan: State at a Glance, http://www.epa.gov/airquality/cpptoolbox.com.

[5] Vermont, which has no coal power plants, whose largest source of electricity is hydropower imported from Canada, and which boasts “booming solar and wind power industries,” is the only contiguous state exempted from the Plan. See John Upton, Could the Clean Power Plan create a massive cap-and-trade system?, Green Biz (Aug. 7, 2015), http://www.greenbiz.com/article/could-clean-power-plan-create-massive-cap-and-trade-system; Dave Gram, VT Praises Obama’s Clean Power Plan, Burlington Free Press (Aug. 3, 2015), http://www.burlingtonfreepress.com/story/news/local/

[6] Jon Dougherty, New York State Leads Way in Cutting Greenhouse Gas Emissions, Time Warner Cable News (Aug. 3, 2015), http://www.twcnews.com/nys/capital-region/news/2015/08/3/nys-leads-way-in-cutting-greenhouse-gas-emissions.html.

[7] Alex Kuffner, Rhode Island Leaders Applauding Obama’s Clean Power Plan, Providence Journal (Aug. 3, 2015), http://www.providencejournal.com/article/20150803/NEWS/150809769.

[8] See supra note 4; see also Sam Heller, Obama’s Clean Power Plan Garners Praise from Vermont Leaders, VTDigger.org (Aug. 4, 2015), http://vtdigger.org/2015/08/04/obamas-clean-power-plan-garners-praise-from-vermont-leaders/.

[9] Patty Wright, Obama Administration’s Clean Power Plan Wins Praise in Maine, http://www.nrcm.org/news/environmental-issues-in-the-news/obama-administrations-clean-power-plan-wins-praise-in-maine/.

[10] David Brooks, NH Well Positioned to Meet Clean Power Standards, The Telegraph (Aug. 4, 2015).

[11] Id.

[12] Although New Jersey relies less heavily on coal-fired plants than some of its neighboring states, there are still five coal-fired plants within the state, and it is “unclear whether... any of [these plants] will be forced to shutter.” Karen Yi, Obama’s Clean Power Plan Sets Lofty Goal for NJ, Asbury Park Press (Aug. 4, 2015), http://www.app.com/story/news/politics/new-jersey/2015/08/04/obamas-clean-power-plan-sets-lofty-goal-new-jersey/31118891/.

[13] James M. O’Neill, Obama’s Plan Sets Clean Air Goals for N.J., NorthJersey.com (Aug. 3, 2015), http://www.northjersey.com/news/obama-s-plan-sets-clean-air-goals-for-n-j-1.1385667?page=all.

[14] See http://www.nj.gov/dep/111d/docs/njdep-111-d-cover-letter-to-epa-admin-stay-reconsideration-request.pdf.

[15] Rebecca Smith and John W. Miller, Impact of EPA’s Emissions Rule on Industry to Vary, Wall St. J. (Aug. 3, 2015).

[16] See John Upton, Could the Clean Power Plan create a massive cap-and-trade system?, Green Biz (Aug. 7, 2015), http://www.greenbiz.com/article/could-clean-power-plan-create-massive-cap-and-trade-system.

[17] Rebecca Smith and John W. Miller, Impact of EPA’s Emissions Rule on Industry to Vary, Wall St. J. (Aug. 3, 2015).

[18] See Francine Kiefer, In coal-mining Kentucky, shock and dismay over Clean Power Plan’s new targets, The Christian Science Monitor (Aug 4, 2015), http://www.csmonitor.com/USA/Politics/2015/0804/In-coal-mining-Kentucky-shock-and-dismay-over-Clean-Power-Plan-s-new-targets.

[19] Clean Power Plan: State at a Glance Kentucky, Envt’l Protection Agency, http://www.epa.gov/airquality/cpptoolbox/kentucky.pdf.

[20] Final Rule Update—Pennsylvania, E&E Publishing, http://www.eenews.net/interactive/clean_power_plan/states/pennsylvania.

[21] Ohio EPA harshly critical of proposed carbon emission standards, http://www.bizjournals.com/columbus/blog/ohio-energy-inc/2014/12/ohio-epa-harshly-critical-of-proposed-carbon.html#i1.

[22] EPA’s new power plant rules tougher on Indiana, IndyStar (Aug. 3, 2015), http://www.indystar.com/story/news/politics/2015/08/03/epas-new-power-plant-rules-tougher-indiana/31076009/.

[23] Kristi E. Schwartz, Southern States Rally for “Line in the Sand” on EPA’s Clean Power Plan, E&E Daily (July 20, 2015), http://www.eenews.net/stories/1060022064.

[24] S. 1324 (introduced May 13, 2015).

[25] 10 Things to Know about the Clean Power Plan and West Virginia, West Virginia Public Broadcasting, http://wvpublic.org/post/10-things-know-about-clean-power-plan-and-west-virginia.

[26]  Clean Power Plan: State at a Glance Maryland, Envt’l Protection Agency, http://www.epa.gov/airquality/cpptoolbox/maryland.pdf.

[27]  Clean Power Plan: State at a Glance Tennessee, Envt’l Protection Agency, http://www.epa.gov/airquality/cpptoolbox/tennessee.pdf.

[28] Jim Piggott, Activists, Utilities React to Clean Power Plan, News4JAX (Aug. 3, 2015).

[29] Id.

[30] See EPA has until today to respond to Arizona’s concerns with the Clean Power Plan, Phoenix New Times, Aug. 7, 2015, http://www.phoenixnewtimes.com/news/epa-has-until-today-to-respond-to-arizonas-concerns-with-the-clean-power-plan-7549896#!.

[31] California is ahead of the game as Obama releases Clean Power Plan, L.A. Times, Aug. 4, 2015, http://touch.latimes.com/#section/-1/article/p2p-84135967/.

[32] Oregon on track to meet Clean Power Plan target, Statesman Journal, Aug. 3, 2015, http://www.statesmanjournal.com/story/tech/science/environment/2015/08/03/oregon-track-meet-clean-power-plan-target/31091011/.

[33] State already in step with Obama clean-power plan, Seattle Times, Aug. 3, 2015, http://www.seattletimes.com/seattle-news/environment/state-already-in-step-with-obama-clean-power-plan/.

[34] Obama Clean Power Plan could turn NV into energy exporter, Reno Gazette-Journal, Aug. 5, 2015, http://www.rgj.com/story/money/business/2015/08/03/obama-clean-power-plan-turn-nevada-energy-exporter/31069617/.

[35] Utilities, Colorado formulating actions for Clean Power Plan, Denver Post, Aug. 5, 2015, http://www.denverpost.com/business/ci_28586741/utilities-state-formulating-actions-clean-power-plan.

[36] Which states lose from the changes in EPA’s Clean Power Plan?, Phillip A. Wallach, Brookings Institution, Aug. 5, 2015, http://www.brookings.edu/blogs/fixgov/posts/2015/08/05-state-losers-clean-power-plan-wallach.

[37] EPA has until today to respond to Arizona’s concerns with the Clean Power Plan, Phoenix New Times, Aug. 7, 2015, http://www.phoenixnewtimes.com/news/epa-has-until-today-to-respond-to-arizonas-concerns-with-the-clean-power-plan-7549896#!.

[38] Obama Clean Power Plan Demands Emissions Reductions From States, KUOW.org, Aug. 4, 2015, http://kuow.org/post/obama-clean-power-plan-demands-emissions-reductions-states.

[39] Texas Governor Greg Abbott Responds to EPA’s Clean Power Plan, http://www.marshallnewsmessenger.com/news/2015/aug/04/texas-governor-greg-abbott-responds-to-epas-clean-/.

[40] U.S. Energy Information Administration, Arkansas State Profile and Energy Estimates, http://www.eia.gov/state/?sid=AR.

[41] Final Rule Update—Arkansas, E&E Publishing, http://www.eenews.net/interactive/clean_power_plan/states/arkansas.

[42] Final Rule Update—Minnesota, E&E Publishing, http://www.eenews.net/interactive/clean_power_plan/states/minnesota.  For Minnesota, relying on renewable energy as a building block, rather than natural gas, makes more sense because current natural gas plants often run mainly during peak times to back up renewables.

[43] Special Message from Gov. Rick Snyder, March 13, 2015, http://www.michigan.gov/documents/150313_Energy_Message_FINAL_484033_7.pdf.

[44] Clean Power Plan: State at a Glance: North Dakota, Envt’l Protection Agency, http://www.epa.gov/airquality/cpptoolbox/north-dakota.pdf.

[45] Final Rule Update—North Dakota, E&E Publishing, http://www.eenews.net/interactive/clean_power_plan/states/north_dakota.

[46] 6 Governors Threaten to Defy Obama’s Clean Power Plan, U.S. News & World Report, July 10, 2015, http://www.usnews.com/news/articles/2015/07/10/6-governors-threaten-to-defy-epa-clean-power-plan.

[47] MISO, SPP Stakeholders Developing Trading Plan to Comply with EPA Carbon Rule, RTO Insider, April 2, 2015, http://www.rtoinsider.com/epa-ferc-clean-power-plan-miso-spp-14140/.

[48] U.S. EPA’s Clean Power Plan Final Rule, Midwest Energy Efficiency Alliance, http://www.mwalliance.org/node/3706.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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