Introduction: Twenty-eight States joined by numerous industry and non-profit groups are challenging the legality of EPA’s carbon dioxide (CO2) emission standards for existing electric utility generating units—the so-called Clean Power Plan (“CPP” or “Power Plan”). Petitioners don’t address the Clean Energy Incentive Program (CEIP) in the litigation, but not because none objects to it. The proposed CPP rule and subsequent Notice of Data Availability neither mention the CEIP by name nor describe its mechanisms or provisions, denying the public an opportunity to raise legal concerns about it in the CPP comment periods.
If the Court of Appeals, or subsequently the Supreme Court, vacates the Power Plan, the CEIP Design Details rule will be null and void as well. However, the Courts may uphold the Power Plan or parts of it. If so, the CEIP could be challenged in future litigation based on concerns raised during the present comment period. This comment letter raises both procedural and substantive concerns about the proposed CEIP Design Details rule.