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.
