EPA COULD MISS APRIL 13 DEADLINE FOR NSPS

Tamar Hallerman
GHG Monitor
3/22/13

Greenhouse gas emissions performance standards for future fossil fuel plants being finalized by the Environmental Protection Agency look to be behind schedule and may not be complete by next month’s deadline. The agency has yet to finish vetting the rule—known as New Source Performance Standards (NSPS)—internally and has not yet sent the rulemaking to the Office of Management and Budget (OMB), according to the White House website. Under federal law, EPA is required to finalize a rulemaking a year after it is initially published in the Federal Register. Given that EPA must finalize NSPS by April 13—and that it often takes OMB upwards of 90 days to vet regulations—it is increasingly looking like the Agency will be late in finalizing the landmark performance standards. EPA did not respond to a request for comment.

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 CCS technology or opt toward gas or other lower-carbon sources. In order to incentivize the deployment of CCS technology, EPA said it is 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. EPA previously said it had received close to 2 million comments on the NSPS proposal.

Reports Suggest EPA Retooling NSPS

Some media reports this week hinted that the delay could be because EPA is thinking of revisiting—and potentially weakening—some of the key components of the rulemaking. The Washington Post initially reported March 15 that the Obama Administration could be significantly changing the standards in order to ensure stronger legal and technical footing for the controversial rulemaking, which is expected to be quickly challenged in federal court upon finalization. “EPA is certainly on notice that a lot of groups out there with high-powered lawyers don’t think the way they did the standards works, and they’ve got to take that seriously,” Dina Kruger, president of Kruger Environmental Strategies who previously headed EPA’s climate office, said in an interview this week. Kruger added that EPA could be “slow-walking” the regulations until after Gina McCarthy is confirmed as Administrator. 

Others speculated that the agency is considering issuing separate standards for coal and gas units—addressing one of the major criticisms from the rule’s industry opponents, who say the rule’s current blanket standard has no legal precedent and is subsequently illegal under the Clean Air Act. Groups like the National Mining Association have lobbied for the EPA to issue separate standards for coal and gas. “By requiring new coal-fueled power plants to meet the same standards as new gas-fired plants, which is unprecedented under the Clean Air Act, EPA’s rule would have the unfortunate effect of preventing the construction of new coal plants or the upgrading of existing sources,” an NMA spokesperson told GHG Monitor this week. “Such a result would actually block potential GHG emissions reductions, make our electric energy grid vulnerable and harm our economy.”

In a letter to President Obama earlier this week, Sens. Joe Manchin (D-W.Va.), Mary Landrieu (D-La.), Joe Donnelly (D-Ind.) and Heidi Heitkamp (D-N.D.) said they were “concerned” about the impact of NSPS and also urged for separate standards based on fuel type. The group said a single standard, like the rule as proposed, would effectively “ban” the more efficient coal technologies currently being developed. “Such a consequence could actually block potential GHG emissions reductions, endanger our electricity supply and harm our economy. We urge you to consider an alternative approach,” the senators said. 

Environmental Groups Express Concern

At a forum on the performance standards held earlier this week, some environmental groups said they were somewhat “concerned” about the potential for the rule’s delay. “We know EPA’s working hard on this, and we trust them at their word on that, but they have to expect that if the deadline passes unmet we’ll take steps to have that enforced,” said David Doniger, the Natural Resources Defense Council’s policy director for its Climate and Clean Air Program. “But I do not have any information or evidence to back up the premise from some of these stories that EPA is considering sending a weaker standard than the proposal.”

Conrad Schneider, advocacy director for the Clean Air Task Force, said that recent reports are likely overblown. “There’s missing the deadline, which is serious, but if the deadline is being missed by some short period of time for the agency to shore up the rule, that does not give us a lot of pause. In an environment in which the litigation outcomes are less certain in terms of the behavior of [federal courts], it makes sense for EPA to be careful about the rule,” Schneider said. “If it’s taking its time to do a really good job, that’s fine. But if it’s delaying it for some reason, then that wouldn’t be acceptable. But at this point we have no reason to impune EPA’s motives and think that they’re deliberately delaying.”