Abby L. Harvey
GHG Monitor
12/19/2014
Carbon emissions standards for existing coal fired power plants proposed by the Environmental Protection Agency in June are unworkable, unrealistic and may not be legal, according to a report released this week by Republicans on the House Energy and Commerce Committee. The proposed regulation sets state-specific carbon emission reduction goals and requires states to develop action plans to meet those goals. In their report, though, House Republicans charged that there are “fundamental legal questions” concerning whether the EPA has the authority to make such a proposal. The report also says that many assumptions in the regulation’s ‘building blocks’ are unrealistic; that the proposal “would not be workable” for some states because of implementation challenges; and that the timeline for completing the rulemaking may have been inadequate to address all substantive comments, regardless of an extension to the comment period.
Legal Questions Remain
The legal standing of the proposal, which was developed under section 111(d) of the Clean Air Act, has long been challenged. According to legal challenges, the EPA does not have the authority to regulate carbon emissions from existing coal-fired power plants under section 111(d) because these sources are already regulated for other pollutants — Mercury and Air Toxics — under section 112 of the Clean Air Act. “The express language of the CAA, as set forth in the U.S. Code, provides that EPA does not have the legal authority to regulate CO2 emissions from existing power plants under section 111(d). Specifically, section 111(d) excludes the regulation of any pollutant emitted from a source category which is being regulated under section 112 of the CAA,” the report says.
Further, challenges have been brought to some “outside the fence” measures included in the regulations. The proposed regulations suggest a path to emissions reductions using four “building blocks”—heat rate improvements at the coal units, increased use of natural gas units, increased use of renewable and nuclear energy and demand-side energy efficiency. However, the legality of the “out-side-the-fence” measures in the last three building blocks has been questioned and many states have noted policy-based constraints within their state governments which would make them unable to implement the last two building blocks; renewables/nuclear and demand-side energy efficiency. “EPA is seeking to set emissions limits that would not be achievable through emissions controls or other actions at the actual units subject to regulation. Rather, to meet EPA’s proposed emissions limits, states would need to undertake measures, such as building blocks 2, 3 and 4, outside the boundaries of the units,” the report says.
Regulations May be Difficult to Comply With
The report raises several other issues with the regulations, including possible relatability issues, timeline constraints and the feasibility of various measures. “Other questions concern the workability and feasibility of the rule, ranging from specific questions about whether the assumptions underlying EPA’s proposed mandatory CO2 emissions targets for specific states are realistic, to the impacts on electricity markets, electricity reliability, and fuel diversity; the implications of increased reliance on natural gas, renewables and energy efficiency; costs associated with stranded assets, compliance costs associated with building necessary new transmission infrastructure, and costs to consumers and businesses; and impacts on future economic growth, including for states’ energy intensive and trade exposed industries and job creation,” the report says.
