Ninth Circuit says enviros have no standing to compel state regulation of GHG emissions from oil refineries

A panel of Republican-appointed judges on the U.S. Court of Appeals for the Ninth Circuit ruled Oct. 17 that environmentalists lack standing to challenge a state's failure to invoke the Clean Air Act to regulate oil refinery greenhouse gas emissions.

The case involves an effort by environmentalists to force Washington to develop and implement technology standards that would result in the reduced GHG pollution. Washington's state implementation plan, the program for air pollution control required by the Clean Air Act, does not reach greenhouse gases.

The environmentalists won in the federal district court.

The appeals court panel's holding rests on an assertion that the plaintiffs were unable to show a link between the harm they suffer from the emissions and the industrial activities, and consequent emissions, by the regulated entities. In other words, the panel decided that there is no legally recognizable connection between the conceded emissions and the generally accepted environmental damage they do.

"[A]ttempting to establish a causal nexus in this case may be a particularly challenging task," wrote the opinion's author, Judge Milan D. Smith.

This is so because there is a natural disjunction between [p]laintiffs’ localized injuries and the greenhouse effect. Greenhouse gases, once emitted from a specific source, quickly mix and disperse in the global atmosphere and have a long atmospheric lifetime. Current research on how greenhouse gases influence global climate change has focused on the cumulative environmental effects from aggregate regional or global sources. But there is limited scientific capability in assessing, detecting, or measuring the relationship between a certain GHG emission source and localized climate impacts in a given region.

Smith cited a May 2008 memorandum from the director of the U.S. Geological Survey to the U.S. Fish and Wildlife Service for this conclusion.

Richard Frank, a professor of law at the University of California at Davis and an expert on environmental law, said that Smith’s point is a departure from the traditional way in which courts approach pollution problems.

“The courts have pretty easily and readily dismissed the notion that one of the polluters should not be held responsible and the party could not go after one bad actor in court because of the idea that everyone is doing it,” he explained.

Janette Brimmer, an Earthjustice lawyer who represented the environmental group plaintiffs in the case, said she thought the opinion will make it harder for public interest plaintiffs to challenge regulatory inaction in court.

“There’s no doubt this decision raises the bar, and raises it pretty darn high,” she said.

Smith’s opinion relied on a narrow reading of a 2007 holding of the U.S. Supreme Court. In that case, called Massachusetts v. Environmental Protection Agency, the justices held that Massachusetts had standing to challenge EPA's failure to regulate greenhouse gases.

Smith wrote that the ability of the states in the Massachusetts v. Environmental Protection Agency case to secure standing in a challenge focused on failure to regulate rested solely on those states' status as sovereigns, a status environmentalists do not have.

This reading of the Massachusetts case, Frank said, is too narrow.

“There were a lot of people that, when the Massachusetts decision was issued in 2007, thought this opened the courthouse door at least a little bit to a lot of different parties who sought to bring climate change actions,” he said.

The Supreme Court’s opinion in Massachusetts v. Environmental Protection Agency may not have even been solely premised on a state’s status as a sovereign entity within the union. The court did not hold in that case that Massachusetts’ co-plaintiffs lacked standing to challenge the Bush administration’s refusal to use the tools provided by the Clean Air Act to limit greenhouse gas emissions.

In fact, the court said that Congress’ decision to include a citizen suit provision in the Clean Air Act meant that sovereign entities are not the only parties who can sue under the law.

“ When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant," he wrote.

Nor is the other pillar of Smith’s rejection of standing for the environmental plaintiffs necessarily well-grounded in the guidance offered by the justices. Smith’s opinion for the Ninth Circuit panel also asserted that, in contrast to the higher percentage of worldwide greenhouse gas emissions at issue in the Massachusetts case, the Washington refineries account for only five percent of warming pollution emanating from the sources just in that single state.

Stevens’ opinion in the Massachusetts case dismissed a similar argument against standing.

“[The] argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum," Stevens wrote. "Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop.

In fact, Frank said, another federal appeals court has applied the Massachusetts decision to a question of standing very similar to that in the Washington case and come out exactly opposite to the Ninth Circuit panel.

“There’s a decision in the Second Circuit, based in New York, in American Electric Power v. Connecticut that I think is pretty diametrically opposed to this,” he said.

One explanation for the Ninth Circuit decision may be judicial discomfort with the notion that courts should help fashion a societal response to climate change.

At oral argument in the Washington case, one of the judges on the panel indicated that he believed that the courts should discourage litigation as a method for dealing with it.

"Perhaps carbon dioxide causes harm, we know poverty causes harm, so why shouldn't it be a policy question decided Congressionally rather than an inch-by-inch incremental series of injunctions by district courts, each of which has no practical effect, but in your theory incrementally adds up to an effect?," Judge Andrew Kleinfeld, an Alaska-based member of the panel that decided the case, asked at oral argument July 10.

Frank explained that this response may be based on a view that climate change is too complex for courts.

“You’re talking about a global problem,” he said. “One unit of pollution emitted in Anacortes, Washington does not have more or less effect than a unit of pollution discharged in Beijing, Paris, or Johannesburg.”

The federal appeals court also held that, even if the plaintiffs had shown causality between the refinery emissions and environmental damage to Washington lands and waters and the atmosphere, a RACT requirement would not make any difference.

"Because the effect of collective emissions from the [o]il [r]efineries on global climate change is 'scientifically indiscernible,' [p]laintiffs' injuries are likely to continue unabated even if the [o]il [r]efineries have RACT controls," Smith wrote.

Smith's opinion was joined by Kleinfeld and circuit judge N. Randy Smith.

Smith was appointed to the bench by former President George W. Bush in 2006, while Smith was appointed by Bush in 2007. Kleinfeld was appointed by President George H.W. Bush in 1991.

The case is Washington Environmental Council v. Bellon, No. 12-35323.

Supreme Court to take up narrow question related to EPA's greenhouse gas regulatory authority

The U.S. Supreme Court announced Oct. 15 that it will review a narrow question related to the scope of the Environmental Protection Agency's authority to regulate greenhouse gas emissions.

In its order, the court took the unusual step of crafting its own question on which certiorari was granted. The justices asked the parties to brief "whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”

"Everybody's scratching their head about the question they took," Patrick Parenteau, a professor and senior counsel to the Natural Resources Law Clinic at Vermont Law School, said.

That question appears to be one that is well-settled. It arises from two regulations issued by EPA in the aftermath of the 2007 decision in Massachusetts v. Environmental Protection Agency.

In that case the court ruled that EPA must decide whether carbon dioxide is a pollutant subject to regulation under the Clean Air Act. The administration of former President George W. Bush had argued that EPA lacked the authority to regulate carbon dioxide emissions to the atmosphere.

Following the decision, EPA issued four rules. The first was a decision that carbon dioxide does pose a threat to public health. This endangerment finding set the stage for more specific regulations aimed at limiting emission of the greenhouse gas to the atmosphere by both mobile and stationary sources.

In June 2012, in a case called Coalition for Responsible Regulation v. Environmental Protection Agency, the U.S. Court of Appeals for the District of Columbia Circuit held that the agency had the authority to issue the endangerment finding for carbon dioxide.

The second post-Massachusetts v. Environmental Protection Agency rule limited motor vehicle emissions. This tailpipe rule was finalized in 2010 and was also upheld by the U.S. Court of Appeals for the District of Columbia Circuit in the same case that involved an attack on the carbon dioxide endangerment finding.

The Supreme Court declined to grant review of either of those two aspects of the decision in the Coalition for Responsible Regulation case.

Following the finalization of the tailpipe rule, EPA next moved to regulate carbon dioxide emissions from stationary sources. To do this, the agency first announced a timing rule that specified the chronological conditions under which sources of carbon dioxide would become subject to regulation, making clear that stationary sources of carbon dioxide pollution would not be subject to emission limits until a specific rule focused on that subject was finalized, and then issued a tailoring rule that enunciated the statutory basis of that regulation.

That basis is section 202 of the Clean Air Act, which was also the foundation for the tailpipe rule. It is that linkage that prompted the attack on this part of the Obama administration's climate change regulatory program that is now under review by the justices.

Under an interpretation of the statute that is several decades old, EPA concluded that, since carbon dioxide emissions are subject to regulation under section 202 of the Clean Air Act, stationary sources of the pollutant are likewise prone to regulation under two separate provisions of the law.

One, called the Prevention of Significant Deterioration of Air Quality program, requires state-issued permits for some stationary sources, such as steel mills and iron foundries, that discharge to the atmosphere more than 100 tons per year of "any pollutant" and other stationary sources that discharge "any pollutant" in an amount exceeding 250 tons per year.

The other is an entire section of the law that also applies to "any pollutant" and similarly imposes the 100 ton-per-year threshold.

The Coalition for Responsible Regulation court upheld this interpretation of the Clean Air Act and it is that interpretation that will now be reviewed by the Supreme Court.

"The crux of the case is going to come down to this question: Are the only sources that are covered by section 165, the requirement of a PSD permit, those that emit NAAQS pollutants?," Parenteau said.

He was referring to the statutory section of the Clean Air Act that sets forth the prevention of significant deterioration of air quality requirements and the law's classification of certain pollutants for which a particular kind of permit to discharge is required.

"That's the industry's argument," Parenteau explained. "They say that carbon dioxide is not a NAAQS pollutant and, because they are not a hazardous air pollutant, the sources that emit carbon dioxide are simply not covered by section 165. Well, if you actually look at the text of section 165, you'll see two things. One, it refers to 'any air pollutant.' Many years ago, EPA interpreted that phrase to mean 'any air pollutant regulated under the Clean Air Act.' That's a long-standing interpretation. That's not new."

In 1980 EPA said that a stationary source would be subjected to review under the Clean Air Act's PSD program if it "emit[s] any pollutant in major amounts . . . and [is] located in an area designated attainment or unclassifiable for that or any other pollutant.” The agency explained that “'any pollutant'” means “both criteria pollutants, for which national ambient air quality standards have been promulgated, and non-criteria pollutants subject to regulation under the Act.”

In 2002, during the George W. Bush administration, the agency reiterated this understanding of the Clean Air Act's reach.

The tailoring rule recognizes that, because the agency's interpretation of the statutory language could extend EPA's regulatory reach to thousands of stationary sources, a limit on the size of affected sources is necessary. The rule is limited to new sources that emit at least 100,000 tons of carbon dioxide each year and existing sources that undergo a modification that would cause at least 75,000 tons per year to be discharged to the air.

Industry advocates have argued that EPA lacks the authority to limit the reach of its regulatory program under the Clean Air Act and, moreover, that the PSD provisions of the law on which that program is based are available only if the agency has first decided that the pollutant in question - in this case, carbon dioxide - is part of the National Ambient Air Quality System. The NAAQS, in turn, is limited to the pollutants, like those that make up the components of smog, that pose a danger to an individual's health when breathed.

Parenteau thinks this argument is not likely to go very far because the language of the Clean Air Act does not limit EPA's discretion in the way industry asserts it does.

"If you drive down further into section 165, you’ll see in (a)(3), there are three subsets referred to there," he said. "One is NAAQS, but then it says 'or' any other emission standard under the act. My view is that the disjunctive gives EPA the authority."

The relevant language of section 165(a)(3) of the Clean Air Act provides that

No major emitting facility on which construction is commenced after August 7, 1977, may be constructed in any area to which this part applies unless -

. . .

(3) the owner or operator of such facility demonstrates, as required pursuant to section 7410 (j) of this title, that emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any

(A) maximum allowable increase or maximum allowable concentration for any pollutant in any area to which this part applies more than one time per year,

(B) national ambient air quality standard in any air quality control region, or

(C) any other applicable emission standard or standard of performance under this chapter[.]

. . .

"I think EPA’s interpretation is reasonable," Parenteau said. "I don’t see how the court can rule, as a matter of law, that this interpretation is not open to EPA as a matter of law."

Given the views of at least two of the court's conservative justices on the question whether to disregard clear statutory language in the face of contradictory or ambiguous legislative history, Parenteau's point may be well-taken.

Justice Antonin Scalia, for example, has long eschewed the practice of looking to legislative history as a tool for understanding the meaning of a statute. He has, instead, asserted in opinions and books that a record of the debate by legislators on a bill offers no assistance to a judge at all.

For example, in one 2006 case Scalia wrote a concurring opinion in which he asserted that "[t]he use of legislative history is illegitimate and ill advised in the interpretation of any statute."

Among the justices, Scalia is the most adamantly opposed to going beyond the text of a statute to decipher Congressional intent. Others, however, have also expressed caution about doing so.

For example, Justice Samuel Alito, while a circuit judge, wrote opinions on several occasions in which he explained his view that indicia of legislative intent found in committee reports and the like cannot override the plain language of a statute.

In one 1999 case, he made his view on the issue clear, writing that "even if I were convinced that Congress harbored some general purpose that was inconsistent with those specific provisions, I would follow the specific language that Congress duly enacted."

Justice Anthony Kennedy was part of the majority in Massachusetts v. Environmental Protection Agency. He also signed on to the majority opinion in the 2011 case of American Electric Power v. Connecticut, which re-affirmed EPA's authority to regulate greenhouse gases under the Clean Air Act.

Given that Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor, and Elena Kagan have generally supported federal regulatory efforts relating to environmental protection, and that Ginsburg and Breyer agreed to the Massachusetts v. Environmental Protection Agency majority opinion, few, if any, observers of the court expect them to hold that EPA exceeded its authority in issuing the tailoring rule.

Parenteau suggested that it is possible the Supreme Court acted hastily in deciding whether to review the question of EPA's authority to link regulation of stationary carbon dioxide pollution sources to the Clean Air Act's provisions relating to motor vehicle emissions.

"It’s entirely possible that they’ll look at this case, see what EPA has done, and say it’s fine," he said. "They might also say that EPA should have made a separate determination for stationary sources. To me, that’s a silly way to spend your time, to say you needed to be more clear about this."

The cases are Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146; American Chemistry Council v. Environmental Protection Agency, No.12-1248; Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation v. Environmental Protection Agency, No. 12-1254; Southeastern Legal Foundation v. Environmental Protection Agency, No. 12-1268; Texas v. Environmental Protection Agency, No. 12-1269; and Chamber of Commerce of the United States v. Environmental Protection Agency, No. 12-1272.

A decision by the Supreme Court is expected by July 2014.



Image courtesy Wikimedia.

States, environmentalists sue EPA over wood stoves, boilers, furnaces

Seven states and a coalition of environmental and public health groups sued the Obama administration Thursday in an effort to compel the U.S. Environmental Protection Agency to update 25-year old standards for outdoor wood boilers, furnaces, and other sources of soot and smoke.

The litigation is based on a provision in the Clean Air Act that requires EPA to review every eight years the new source performance standards for particulates emitted by stationary air pollution sources.

"Wood stoves and boilers are a significant source of harmful particulates and toxic hydrocarbons,” Elena Craft, a toxicologist with Environmental Defense Fund, said.

A number of reports have found that smoke and soot produced by wood combustion can cause harmful increases in particulates. In 2013 EPA released a document that pointed to particulate pollution from wood-burning devices as a cause of increased frequency of heart attacks and asthma.

The NSPS for wood-burning devices was finalized in 1988.

"Since then, research into the pollutants from wood-burning has grown rapidly," Janice Nolen, the assistant vice president for national policy at the American Lung Association, said. "EPA has abundant evidence that the standards from a generation ago endanger public health.”

Because EPA has not updated the NSPS, consumers purchase and install new wood boilers, stoves, and furnaces that produce more pollutants than would be the case if the emission standards applicable to them were updated.

“We’ve seen the market for outdoor boilers expand over the past two decades and over 10,000 units are sold each year,” David Presley, an attorney with Clean Air Council, said.

A website maintained by the Hearth, Patio and Barbecue Association, an industry trade group, indicates that more than 400,000 new wood-burning stoves have been sold in the U.S. since 2007. 

Under the CAA periodic reviews of the wood combustion device NSPS should have occurred in 1996, 2004, and 2012.

The states who sued EPA to compel the statutory review are Connecticut, Maryland, Massachusetts, New York, Oregon, Rhode Island, and Vermont. The Puget Sound Clean Air Agency is also a plaintiff.

The plaintiffs in the other lawsuit are the American Lung Association, Clean Air Council, Environment and Human Health, Inc., and Environmental Defense Fund.

Image courtesy Wikimedia.

Justices do not decide whether to hear greenhouse gas cases at Supreme Court's first conference of new term

The U.S. Supreme Court did not take an opportunity presented by its Sept. 30 conference to grant review of a court of appeals decision that upheld federal authority to regulate greenhouse gas emissions under the Clean Air Act.

The justices, meeting for the first time during the 2013-14 court term, issued no orders in response to nine petitions for certiorari related to the case.

The U.S. Court of Appeals for the District of Columbia Circuit held in June 2012 that EPA acted properly in designated carbon dioxide as a threat to public health and welfare under the Clean Air Act.

That endangerment finding is one of the core issues in the various requests for review of the D.C. Circuit ruling.

A 2007 decision of the Supreme Court known as Massachusetts v. Environmental Protection Agency forced EPA into that action by holding that the nation's principal air pollution law compels the agency to impose regulations on greenhouse gas emissions.

The cases are American Chemistry Council v. Environmental Protection Agency, No. 12-1248; Coalition for Responsible Regulation v. Environmental Protection Agency, No. 12-1253; Chamber of Commerce of the United States v. Environmental Protection Agency, No. 12-1272; Energy Intensive Manufacturers Working  Group on Greenhouse Gas Regulation v. Environmental Protection Agency, No. 12-1254; Pacific Legal Foundation v. Environmental Protection Agency, No. 12-1153; Southeastern Legal Foundation v. Environmental Protection Agency, No. 12-1268; Texas v. Environmental Protection Agency, No. 12-1269; Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146 ; and Virginia v. Environmental Protection Agency, No. 12-1152.

EPA proposes carbon dioxide limits for new power plants

The Obama administration made clear Friday that it will move forward with a regulatory agenda aimed at slowing climate change as the Environmental Protection Agency announced a proposed regulation that would limit carbon dioxide emissions from new power plants.

The proposed Carbon Pollution Standard for New Power Plants was announced at the National Press Club by EPA administrator Gina McCarthy.

“The overwhelming judgment of science tells us that climate change is real, human activities are fueling that change, and we must take action to avoid the most devastating consequences of climate change,” McCarthy said, according to prepared remarks. “We know this is not just about melting glaciers. Climate change – caused by carbon pollution – is one of the most significant public health threats of our time. That’s why EPA has been called to action.”

In 2007 the U.S. Supreme Court held that EPA must regulate emissions of carbon dioxide to the atmosphere because it is a pollutant that can harm public health and the environment. EPA issued the required “endangerment” finding in Dec. 2009, a decision that was upheld by the federal appeals court in Washington, DC in June 2012.

The endangerment finding relating to carbon dioxide prevents EPA from leaving carbon dioxide pollution of the atmosphere unregulated.

“EPA has no choice but to adopt these regulations,” Patrick A. Parenteau, a professor of law at Vermont Law School, said. “What’s in the regulations is a subject of controversy and discussion. But they don’t have the ability to say ‘no, we won’t do it.’”

The rules announced Friday would, if finalized, distinguish between natural gas-fired power plants and coal-fired electricity generation facilities.

For large natural gas plants, a limit of 1,000 pounds of carbon dioxide per megawatt hour would be imposed; for smaller natural gas power plants, the cap would be 1,100 pounds of CO₂ per megawatt hour.

Coal plants would not be allowed to emit more than 1,100 pounds of CO₂ per megawatt hour. The regulation provides an avenue for coal plant operators to have some additional flexibility as to the limit by allowing them to average emissions over several years, but only if a coal plant operator agreed to accept a more stringent emissions cap.

The core of the rules, and an aspect that may serve as the prop for an expected legal attack by the affected industries, is a requirement that coal-fired power plants capture and store the carbon dioxide they now emit to the atmosphere.

Widespread adoption of the technology has been resisted by the industry on grounds that it may cause an increase in the cost of producing electricity and consume a large proportion of the energy produced by a power plant.

The environmental community generally welcomed Friday’s announcement, lauding the administration’s action as an important step toward a functional national system of greenhouse gas emission controls.

“The standard makes clear that tomorrow’s power plants won’t be built at the expense of our children’s future,” Natural Resources Defense Council president Francis Beineke said in a statement. “It signals that we’re moving, as a country, to the clean energy solutions we need. And it will help safeguard the most vulnerable among us—our children and elderly people—from smog worsened by climate change.”

Environmental Defense Fund president Fred Krupp emphasized the potential mitigation of extreme weather events that might be provided by the proposed new source performance standard.

“As communities across our country struggle with terrible floods, droughts, and wildfires, these standards will finally put a limit on the carbon pollution that new power plants emit into our skies," he said in a statement. “Cleaner power generation will protect our children from dangerous smog, extreme weather, and other serious climate impacts, and ensure that America leads the world in the race to develop cleaner, safer power technologies."

The coal and electric utility industries, meanwhile, wasted little time before expressing its displeasure.

“We intend to  make all the arguments we can against the EPA’s proposed regulation because taking away the option to build efficient new coal-fueled power plants is bad policy,” Robert M. Duncan, the president and chief executive officer of the American Coalition for Clean Coal Electricity, said in a statement.

ACCCE is a coalition of electric utility and coal interests.

Duncan also suggested that litigation challenging the proposed rules is likely.  

Parenteau said that any litigation challenging the new rules would succeed only if it convinces a panel of federal appeals court judges that an equally effective, less expensive pollution control technology is available to power plant operators.

That legal obstacle is daunting. A decision of the U.S. Court of Appeals for the District of Columbia Circuit in 1973 held that a technology-forcing rule “may fairly be projected for the regulated future, rather than the state of the art at present, since it is addressed to standards for new plants.”

That decision, in a case called Portland Cement Association v. Ruckelshaus, does constrain EPA’s discretion to some extent, as it imposes a “reasonableness” standard on the agency. A technology-forcing rule, the court said, “cannot be based on a ‘crystal ball’ inquiry.”

The proposed rule argues that CCS technology has been implemented around the nation, though several of the examples mentioned in it involve electricity generation facilities. However, none of those have actually sequestered carbon dioxide emissions.

The financial costs of compliance may prove less likely to supply a winning argument for industry. A 1999 decision of the D.C. Circuit held that EPA’s choice of a technology mandate “will be sustained unless the environmental or economic costs of using the technology are exorbitant.”

Other cases have provided some clarity to that definition, holding that a maximum achievable control technology requirement included in an emissions regulation will not be rejected unless the costs imposed by the requirement are so high as to threaten the existence of the industry.

These legal arguments will be relevant only if the Supreme Court does not re-visit its Massachusetts v. Environmental Protection Agency ruling. The justices are expected to decide, early in the new court term, whether to grant review of an appeals court decision that upheld EPA’s endangerment finding.

“It’s very unlikely that the Supreme Court would grant review,” Parenteau said. “If for some reason they ruled that the EPA endangerment finding is flawed, then the house of cards falls down. That’s the foundational finding for all these rules. Everything depends on that endangerment finding.”

Parenteau explained that he thought the odds of a reversal of Massachusetts v. EPA were quite low.

“I think it’s less than a one percent chance that the Supreme Court would get five votes to challenge EPA on that,” he said.

“If the industry wants to challenge, sure, it’s going to be expensive, but what’s going to be better?” Parenteau said. “They’re going to have come forward with a better technology.”

Some members of Congress, especially those who represent coal-producing states, are staking out a backstop in case litigation proves unable to stop EPA’s effort to regulate the CO2 emissions of new power plants.

Sen. Joe Manchin, D-W.Va., issued a blistering statement accusing the Obama administration of being an “adversary” of the coal industry.

“Today’s announcement of the EPA’s new source performance standard is direct evidence that this Administration is trying to hold the coal industry to impossible standards,” he said.

Sen. Mitch McConnell, a Kentucky Republican and the chamber’s minority leader, said Friday that he would invoke a rarely-used legislative procedure in an effort to block the rules.

“I will file a resolution of disapproval under the Congressional Review Act to ensure a vote to stop this devastating EPA rule," he said in a statement.

Assuming that a CRA resolution could get passed by the Democratic-controlled Senate, it is not likely that it would be signed into law by the president. President Barack Obama signaled his commitment to an effort to rein in power plant greenhouse gas emissions when he announced a comprehensive climate change policy earlier in the year.

EPA is also working on greenhouse gas emission standards for existing electricity generation facilities.

“[W]e are committed to act on existing plants, too,” McCarthy said Friday. “However, those proposed standards are on a longer timeline. We plan to release a proposal for public comment in June of next year.”

Photo courtesy Wikimedia. 

NOTE: This article also appears at Examiner.com.

Draft rule to limit GHG emissions from future power plants at White House

The Environmental Protection Agency, moving quickly in the aftermath of President Obama's announcement last week of administration plans to combat climate change, has sent a draft rule that limits future power plant emissions of greenhouse gases to the White House.

According to a report in The Hill, a newspaper focused on the work of Congress, the proposed regulation is now in the hands of the Office of Management and Budget. OMB, along with other agencies of the federal government, will weigh in on the rule before returning it to EPA by September 20.

EPA missed an April deadline for finalizing the rule, which it had first proposed in March 2012. 

Utilities have objected to the proposed regulation on grounds that it set pollution standards that are not achievable with current technology. Republicans in Congress, as well as some Democrats, have also expressed concern that it will hurt the economy by increasing the cost of energy.

The draft rule would require natural gas-fired power plants and coal-fired power plants to meet the same pollution limits. While natural gas plants would be unlikely to have difficulty doing so, generation facilities that rely on coal would be forced to integrate a mechanism that captures carbon dioxide emissions before they enter the atmosphere.

Coal burning accounts for about 40 percent of U.S. electricity production and is the nation's single largest source of greenhouse gas emissions.

Cross-state pollution rule to get scrutiny by U.S. Supreme Court

The U.S. Supreme Court will decide next term whether a controversial Clean Air Act regulation can be implemented.

Requests for review of a lower court decision striking down the Cross-state Air Pollution Rule were filed by the Obama administration as well as a coalition of non-profit organizations including the American Lung Association and several environmental advocacy organizations.

The U.S. Court of Appeals for the District of Columbia Circuit held in August 2012 that CSAPR  exceeded the Environmental Protection Agency's authority under the Clean Air Act.

CSAPR would apply to 28 states, all in the eastern and southern regions of the country, requiring them to limit emissions of several pollutants that travel at high altitude across borders into surrounding states.

Environmentalists argue that the rule will save as many as tens of thousands of lives each year because smog and particulate pollution would be reduced. EPA has said that it believes the rule would generate at least $120 billion in annual health and environmental benefits, a sum that is well in excess of the costs of compliance expected to be incurred by regulated entities.

The Supreme Court issued the order granting petitions for certiorari in the case on Monday.

The cases are United States Environmental Protection Agency v. EME Homer City Generation, L.P., No. 12-1182, and American Lung Association v. EME Homer City Generation, L.P., No. 12-1183.

Oral arguments will be conducted after the Court's 2013-2014 term begins in October. A decision is expected before July 2014.

EPA finalized CSAPR in July 2011. The D.C. Circuit's order invalidating it also required the agency to reinstate a less expansive rule having the same objective that was instituted by the George W. Bush administration.

NYT: Obama to move forward with CO2 limits on existing power plants

The Obama administration will proceed with regulations that limit emissions of carbon dioxide from existing electric power plants, according to an article in the June 19 edition of the New York Times.

The piece by veteran reporter John Broder says that the Environmental Protection Agency will begin the process of drafting the complex rules this year.

Broder's article quotes unnamed "senior officials" of the administration.

The path to regulation of such greenhouse gas emissions has been open since 2007, when the U.S. Supreme Court ruled that EPA must regulate CO2 as a pollutant under the Clean Air Act.

Emissions from existing electric power plants account for at least one-third of America's greenhouse gas pollution of the atmosphere, according to EPA.

The question whether, and how, to regulate carbon dioxide emissions from existing power plants is entirely separate from the issue of regulating emissions from new power plants. The administration proposed such rules in 2012 but missed an April 13 deadline to finalize them.

Obama himself has repeatedly signaled an intention to take executive action on measures aimed at mitigating climate change. In Germany on Wednesday he said the nation has a "moral imperative" to combat the phenomenon, calling it the "global threat of our time."

DC Circuit blocks cross-state air pollution rule

An EPA regulation aimed at limiting emissions of sulfur dioxide and nitrogen oxide from power plants in 27 states was blocked Friday by a federal appeals court.

The transport rule, as the regulation is formally known, is the subject of at least three dozen lawsuits filed by electric utilities, other industrial interests, a labor union, and the state of Texas.

The petitioners main argument against the regulation is that it allows them too little time to comply with expensive requirements to come into compliance with pollution limits. They also argue that the cross-state pollution rule unlawfully permits EPA to impose emission limits before the states have had the opportunity to do so.

The latter argument is based on language in the Clean Air Act that seems to limit the use of a federal implementation plan (the acronym for a U.S. government program to limit air pollution with a particular state) to situations where a state has not come up with its own plan or the state's plan is inconsistent with the requirements of the federal air pollution law.

The rule would permit polluters to obtain allowances by purchasing them from competitors, but the opponents of the transport rule have urged the District of Columbia-based appeals court to find that the financial expense necessary to gain such permission to pollute would be too great of a harm to utilities.

Aimed at facilities that produce pollutants that travel in the atmosphere across state lines, the rule would likely force the closure of some older, coal-fired power plants. If implemented, it would force violators to switch to fuels that pollute less, such as natural gas, or install control technology.

“Petitioners have satisfied the standards required for a stay pending court review,” U.S. Court of Appeals for the District of Columbia Circuit judges Brett Kavanaugh, Thomas Griffith and Janice Rogers Brown said in a terse order.

The court's action does not permanently block implementation of the cross-state emissions rule. Instead, it prevents EPA from enforcing it until the compatibility of the rule with federal statutory law is determined.

Oral arguments on the petitions for review of the rule have not been scheduled, but the order released Friday indicates that the court may hear them by April.

Sulfur dioxide is a pollutant that leads to acid precipitation and harmful soot, while nitrogen oxide is a central component of smog and a large contributor to ground-level ozone.

EPA says that the cross-state pollution rule would help to prevent an estimated 13,000-34,000 premature deaths annually by 2014 and reduce hospital and emergency room visits by 19,000 per year.

Coal incineration for electricity production is the source of 98 percent of sulfur dioxide air pollution and 92 percent of nitrogen oxide air pollution released by power plants, according to EPA.

Among states, Texas is the largest consumer of electricity and most of that electricity is produced by burning coal. The state's per capital electricity use is also significantly higher than the national average.

Even if the challengers to the cross-state pollution rule prevail, and EPA is forced to re-draft the rule, power plant operators will likely face the necessity of investing in additional or improved pollution control technology due to a recently-finalized rule limiting emissions of mercury and other toxic air pollutants.

That regulation was finalized in December and will go into effect in 2015.

Brown, Griffith, and Kavanagh were appointed to the Washington, D.C.-based appeals court, which is often assigned by statute to hear challenges to the legality of federal regulations, by former President (and Texas governor) George W. Bush.

The case is EME Homer City Generation LP v. U.S. Environmental Protection Agency, No. 11-1302.