Abby L. Harvey
GHG Monitor
10/16/2015
A significant weakness of the Environmental Protection Agency’s carbon emissions standards for existing coal-fired power plants, the Clean Power Plan (CPP), may be found in an entirely different regulation, a former senior agency official said this week.
The CPP was developed under Section 111(d) of the Clean Air Act and applies to carbon emissions from existing coal-fired power plants. Finalized alongside the CPP in early August, the New Source Performance Standards, developed under Section 111(b), set emissions standards for new-build coal-fired power plants. The two are connected in a vital way, said Jeff Holmstead, a partner at the Bracewell & Giuliani law firm and former EPA assistant administrator for air and radiation. Under the Clean Air Act, EPA only has the authority to regulate an existing source under 111(d) if it regulates new sources of the same type as well under 111(b), he explained. Because of this connection, any weakness in the NSPS is also a weakness in the CPP. If the 111(b) regulation, the NSPS, is overturned, the 111(d) regulation, the CPP would have to be as well.
EPA is trying to counter this argument, though it remains uncertain how legally sound its new position is, according to Holmstead. “Now EPA has a new theory, compounded for the first time, that even if the new source regulation goes down because we have a standard for modified sources, well that’s enough to give us authority, we’ll see what the courts do with that,” Holmstead said at an event hosted by the Bar Association of the District of Columbia. The modified rule has been combined with the NSPS, however, creating uncertainty as to what would happen to the modified rule if the NSPS were overturned.
The fact that the CPP relies heavily on the NSPS makes it surprising to Holmstead that the agency took the NSPS down a controversial path, creating a potentially precarious legal argument for the rule. The NSPS mandates the use of partial carbon capture and storage on all new-build plants. Opponents of the rule have long argued that in doing so the EPA is mandating a technology that has not been proven viable, as only one commercial-scale plant using the technology is currently operating, and that plant is not in the U.S. This could be grounds to overturn the rule.
The mandate is risky, Holmstead said. “Certainly there’s a big legal risk to EPA from doing something that is legally risky with the new source proposal.”
There had been speculation as the rule was being finalized that the EPA would drop the CCS mandate due to the legal risks involved. The rule as proposed required that individual new-build coal units would have to cap emissions at between 1,000 and 1,100 pounds of CO2/MWh using partial carbon capture. The final rule eased this requirement to 1,400 pounds of CO2/MWh but kept the partial CCS requirement.
Not only did EPA keep the CCS mandate, but in easing the emissions cap it created an odd situation in which the standard for new sources is less stringent than the standard set for existing sources in the CPP, Holmstead said. “You should at least make sure that if you’re going to have partial CCS anyway, why don’t you push a little more partial CCS so you can get that rate down,” he said.
Holmstead’s comparison is not quite accurate, said David Doniger, director and senior attorney for the Natural Resources Defense Council’s climate and clean air program. “That’s an apples and oranges comparison to look at the numbers in the new source standard, which has to be met by a source all by itself, versus the number for an existing source in a state implementation plan, which has multiple compliance options,” Doniger said.
While the NSPS sets an emissions rate for the actual carbon source, the CPP works differently. It sets an emissions reduction goal for the state as a whole and requires the states to develop a plan to meet that goal.
