APPEALS COURT DISMISSES CASE AGAINST EPA CARBON PROPOSAL

Tamar Hallerman
GHG Monitor
12/14/12

A federal appeals court this week tossed out a lawsuit from utility industry petitioners aimed at shooting down the Environmental Protection Agency’s proposed greenhouse gas performance standards for new fossil fuel-fired power plants. In a short order issued Dec. 13, the U.S. Court of Appeals for the District of Columbia dismissed the case, arguing that the rulemaking is not yet subject to judicial review because the proposal has not yet been finalized by EPA. The case, consolidated from several challenges filed by organizations such as the Utility Air Regulatory Group and the Tri-State Generation and Transmission Association and organizations representing several planned coal projects like the Las Brisas Energy Center in Texas and Tenaska Trailblazer Partners in Nebraska, aimed to halt Agency efforts to finalize the performance standards.

Proposed in late March under a settlement agreement with several states and environmental groups, EPA’s so-called New Source Performance Standards set a limit on the amount of carbon dioxide that can be emitted from new fossil fuel-fired units larger than 25 MW. The proposal calls for an emissions limit of 1,000 pounds of CO2 per megawatt hour—similar to the emissions rate of an uncontrolled natural gas combined cycle unit—and would essentially require developers to either install CCS technology or switch to natural gas. The rulemaking has been the subject of a steady stream of backlash from industry groups and Congressional Republicans, many of whom argue that the proposal “picks winners and losers” and unfairly disadvantages the coal industry.

While a legal fight with industry over the standards is all but inevitable for whenever the rulemaking is finalized, environmental groups still praised the court’s order. “The D.C. Circuit Court rejected polluters’ latest attack on clean air, clearing the way for the Environmental Protection Agency to continue its work of protecting Americans’ health and well-being,” Sierra Club Executive Director Michael Brune said in a statement. “After a year of extreme weather—from a devastating drought, to raging wildfires, and the calamitous superstorm Sandy—it is clearer than ever that we must take action to reduce climate-disrupting carbon pollution. We look forward to EPA finalizing this crucial standard, and we will continue to support their critically important work against industry attacks.” EPA has not yet set a date for when it will finalize the proposal.