ENVIROS THREATEN TO SUE AFTER EPA MISSES DEADLINE FOR GHG STANDARDS

Tamar Hallerman
GHG Monitor
4/19/13

After the Environmental Protection Agency missed its April 13 deadline to finalize greenhouse gas emission performance standards for new fossil plants, a trio of environmental groups announced their intent to sue the agency for failing to do so. The Sierra Club, Natural Resources Defense Council and the Environmental Defense Fund sent a letter to EPA acting Administrator Bob Perciasepe April 15 notifying him that they will sue the agency if it does not soon finalize the New Source Performance Standards (NSPS), as well as issue guidance for cutting emissions from existing power plants, the nation’s largest source of greenhouse gas emissions. “EPA’s inaction with respect to the proposed NSPS violates [a section of the Clean Air Act], which unambiguously directs EPA to issue final rules within one year of publication of a proposed NSPS,” the letter states. “EPA’s failure to promptly propose and finalize emission guidelines for carbon pollution from existing power plants violates [another section] of the Act and EPA’s regulations implementing that section.”

The groups sent the letter after EPA missed its deadline last Saturday to finalize the standards for new power plants, its first ever to limit greenhouse gas emissions from such sources. The Clean Air Act dictates that EPA must finalize all environmental regulations one year after they are published in the Federal Register. An EPA spokeswoman confirmed Monday that the agency is still working on the standards. “We are working on the rule and no timetable has been set,” the spokeswoman said in a brief statement to GHG Monitor. During her Senate confirmation hearing last week, the Obama Administration’s nominee for EPA Administrator Gina McCarthy said the agency had received some 2.7 million comments on the proposed rulemaking.

‘Unreasonable Delay’

In the letter to Perciasepe, the environmental groups said that EPA’s delay in finalizing NSPS was “unreasonable” and that failing to meet the deadline “harms” the groups’ membership. “Unless EPA takes the required actions before the end of the applicable notice periods, our organizations intend to file civil actions in United States District Court to compel EPA to perform its nondiscretionary duties under [the Clean Air Act] and to enforce such agency action unreasonably delayed,” the groups said. All three organizations, along with a handful of states, had signed onto a settlement agreement with EPA that paved the way for the greenhouse gas standards.

In a written statement to GHG Monitor, Sierra Club Senior Managing Attorney Joanne Spalding said that the NGO expects both rulemakings to be finalized “as soon as possible.” “It’s critical that such an important and detailed standard is done right,” Spalding said. “Since the deadline for finalizing these safeguards has passed, as a precautionary move, we have joined other environmental organizations to send a notice of intent letter in order to ensure the EPA finalizes strong safeguards as soon as possible.” EPA did not respond to a request for comment about the letter of intent.

Rule Sets One Standard for All Generation Sources

Proposed by EPA last spring, the standards require all new fossil units above 25 MW to cap CO2 emissions at 1,000 pounds per megawatt-hour, roughly on par with the emissions rate of an unmitigated natural gas combined cycle unit. To comply, project operators must either install carbon capture and storage technology or opt toward other low-carbon sources like natural gas or renewables. In order to incentivize the deployment of CCS technology, EPA said it would be willing to average a unit’s emissions over a 30-year period, which could allow some electric generating units to run unmitigated for the first 10 years of the standard if operators then promise to install and run CCS technology for the next two decades.

The delay of the NSPS was widely expected even last month, given that the agency had not yet submitted the final rulemaking to the White House Office of Management and Budget, which vets all major federal regulations and often takes up to 90 days to do so. Recent reports have indicated that EPA is taking time to retool the standards in order to ensure stronger legal and technical footing for the controversial rulemaking, which is expected to be quickly challenged in court upon finalization. Many have speculated that EPA is in the process of splitting the standards into separate requirements for coal, gas and other sources of generation. Industry groups have long argued that the current technology-neutral rule has no legal precedent and that EPA should set a separate standard for coal in order to ensure a pathway forward for the technology moving forward. Coal companies have warned that the rulemaking, if finalized in its current form, would lead to a “dash for gas” since the technology is still prohibitively expensive.

But environmental groups argue that separate standards are not needed. “A single standard for all fossil-fired power plants is the best way to set this standard,” Rachel Cleetus, a senior climate economist at the Union of Concerned Scientists said in a statement. Natural gas combined cycle “technology is readily available and in wide use today. The CCS-averaging provision included as a compliance option in the standard also allows for a potential way for coal plants with CCS to comply with the standard over time. Setting a separate standard for coal and natural gas-fired plants would greatly weaken the standard’s ability to ensure a transition away from building high carbon electricity generation sources.”

Establishing firm legal footing for the new source standards is important for the agency as it begins eyeing greenhouse gas limits for existing plants, which it cannot begin promulgating until the former is finalized. Perciasepe said last week that the agency hopes to begin work for existing plants beginning in Fiscal Year 2014. “We are looking forward to … working with states on the existing sources, but we’re not quite there yet,” Perciasepe said. “But that’s certainly something that will be on the table during this next fiscal year.”