Denver 

7700 East First Place 

Denver, Colorado 80230 

Phone 303.364.7700 Fax 303.364.7800 

Washington

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 Emissions 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 State Legislatures (NCSL) in response to your request 

for consultation on the regulatory options being considered by the Environmental Protection Agency (EPA) 

in the upcoming rulemaking process concerning greenhouse gas (GHG) emissions from electric utility steam 

generating units. NCSL appreciates the EPA's commitment to the principles of Executive Order 13132, 

"Federalism;" and the Unfunded Mandates Reform Act (UMRA), and values the opportunity to participate in 

consultation discussions with the agency during the development of the regulation. Consultation early in the 

rulemaking process is indicative of what NCSL hopes for in meaningful consultation under the Federalism 

Executive Order. 

NCSL does not currently have policy on the establishment of specific standards to control GHG emissions 

from electric utility steam generating units. However, there are related issues to the development and 

implementation of any proposed new requirements that are of key importance to state legislatures including 

unfunded mandates, state flexibility and the potential role of state legislatures in advancing the 

implementation of such rules. 

An overarching concern for NCSL is the extent of federal unfunded mandates. States and localities across the 

country continue to face severely constrained budgets with many forced to deal with recurring deficits and 

fewer options for filling budget gaps. The cumulative impact 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 and local government to ensure the programs are 

adequately funded. Estimates related to a regulation’s impact on state or local government should include 

one-time and ongoing regulatory implementation costs as well as the costs of state compliance activities. 

NCSL urges EPA to take this into consideration at each stage of the upcoming rulemaking process and 

ensure that the choice of regulatory options maximizes 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 often able to establish programs that address regional or 

state dynamics more directly than a national program and NCSL is supportive of efforts to use such programs 

as tools in meeting federal standards. Should the agency 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 ensure 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 schedules, 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 you 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 proposed rule is developed and issued. 

Sincerely,

Representative Jeff Morris, Washington 

Chair, NCSL Environment Standing Committee