Denver 7700 East First Place Denver, Colorado 80230 Phone 303.364.7700 Fax 303.364.7800 W ashington 444 North Capitol Street, N.W. Suite 515 Washington, D.C. 20001 Phone 202.624.5400 Fax 202.737.1069 Website www.ncsl.org Email info@ncsl.org Richard Moore Senator Massachusetts Senate President, NCSL

Tim Rice Executive Director Illinois Legislative Information System Staff Chair, NCSL

William Pound Executive Director May 12, 2011

Ms. Mary Johnson U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, DC 20460

Re: EPA's Rulemaking for Greenhouse Gas Emi ssions from Electric Utility Steam Generating
Units Consultation with State and Local Governments

Dear Ms. Johnson:

I am writing on behalf of the National Conference of S tate Legislatures (NCSL) in response to your request for consultation on the regulatory options being consid ered by the Environmental Protection Agency (EPA) in the upcoming rulemaking process concerning gree nhouse gas (GHG) emissions from electric utility steam generating units. NCSL appreciates the EPA's commi tment to the principles of Executive Order 13132, "Federalism;" and the Unfunded Mandates Reform Act (U MRA), and values the opportunity to participate in consultation discussions with the agency during the deve lopment of the regulation. Consultation early in the rulemaking process is indicative of what NCSL hope s for in meaningful consultation under the Federalism
Executive Order.

NCSL does not currently have policy on the establishm ent of specific standards to control GHG emissions from electric utility steam generating units. Howeve r, there are related issues to the development and implementation of any proposed new requirements that ar e of key importance to state legislatures including unfunded mandates, state flexibility and the potenti al role of state legislatures in advancing the implementation of such rules.

An overarching concern for NCSL is the extent of fede ral unfunded mandates. S tates and localities across the country continue to face severely constrained budgets wi th many forced to deal with recurring deficits and fewer options for filling budget gaps. The cumulative im pact of federal regulations creates a difficult task for state and local governments seeking to ensure compliance. Many of these requirements come with little or no federal funding attached leaving the burden on state an d local government to ensure the programs are adequately funded. Estimates relate d to a regulation’s impact on state or local government should include one-time and ongoing regulatory implementation costs as we ll as the costs of state compliance activities. NCSL urges EPA to take this into consideration at ea ch stage of the upcoming rulemaking process and ensure that the choice of regulatory options ma ximizes benefit and minimizes implementation and compliance costs.

### May 12, 2011 p. 2

In reviewing the regulatory options being considered, NCSL would urge the agency to pay particular attention to those options that would provide states with as much flexibility as possible in reaching the underlying goals set by EPA in the upcoming regulation. States are of ten able to establish programs that address regional or state dynamics more directly than a national program an d NCSL is supportive of efforts to use such programs as tools in meeting federal standards. Should the agen cy choose this course it may avoid issues of preemption while allowing for state flexibility, which is key to the successful implementation of any state-federal partnership program.

In establishing any timelines for compliance EPA should take into consideration the constraints of the state legislative calendars that may come into play and ensu re that sufficient time is allowed for states actions necessary to come into compliance. A minimum of two years is necessary to account for the fact that there are six states that only hold session every other year. This concern is not limited to this particular example and could potentially raise a different set of questions in different states. NCSL stands ready to answer any questions you might have about state legislative schedule s, deadlines and restrictions on length and scope of
sessions.

If you have questions about these comments, or for further discussion, please do not hesitate to call on Tamra Spielvogel (202-624-8690 or tamra.spielvogel@ncsl.org ) or Max Behlke (202-624-3586 or max.behlke@ncsl.org ) in our Washington, DC office. Thank yo u again for the opportunity to provide input early in the rulemaking development process. NCSL looks forward to continuing conversations with EPA over the coming months as the propos ed rule is developed and issued.



### Sincerely,

Representative Jeff Morris, Washington Chair, NCSL Environment Standing Committee