The Environmental Protection Agency is mistaken in determining that carbon capture and storage is a proven technology, petitioners in a lawsuit challenging the agency’s New Source Performance Standards for new-build coal-fired power plants said Thursday in briefs submitted to the U.S. Court of Appeals for the D.C. Circuit. The suit is led by North Dakota and challenges the merits of the rule, which essentially mandates the use of partial CCS on all new-build coal-fired power plants.
“In reality, the Rule is a de facto ban on new coal-fired [energy generating units]—particularly those EGUs fueled with lignite, a distinctive form of coal—because the [best system of emissions reduction] is not adequately demonstrated for lignite-fueled EGUs, and the standard of performance is not achievable for lignite-fueled EGUs,” North Dakota said in its brief.
The rule requires that individual new-build coal units would have to cap emissions at 1,400 pounds of CO2/MWh using partial carbon capture.
According to the argument, while CCS may be feasible though extremely expensive for cleaner burning coal, no plant burning lignite, even with CCS, could meet the emissions standard set by the regulation. “[T]he physical and chemical composition of lignite, including higher CO2 emissions, typically requires larger, more energy-intensive emission-control technologies than other coal-fired units,” the brief says.
North Dakota’s brief is one of three filed Thursday to meet the deadline for petitioner’s briefs under the court’s schedule. A group of other states and a group of non-state petitions also filed briefs.
Under Section 111(b) of the Clean Air Act, the section under which the NSPS was drafted, the EPA must determine the best system of emissions reduction (BSER) for the source being regulated, in this case coal-fired power plants. In determining the BSER, the EPA must prove the system selected is adequately demonstrated and achievable.
Because lignite coal-fired power plants can’t meet the emissions standard with CCS, the EPA hasn’t done its job, even if other types of coal-fired power plants could meet the standard, according to the filing. “[P]erformance standards must meet those requirements as applied to the entire source category—here, coal-fueled EGUs, including lignite-fueled units,” the briefing argues.
North Dakota is joined in the suit by West Virginia, Murray Energy Corp., the Energy and Environment Legal Institute, the International Brotherhood of Boilermakers, Peabody Energy Corp., the Utility Air Regulatory Group, the National Mining Association, the Indiana Utility Group, the United Mine Workers of America, Alabama Power Co., the U.S. Chamber of Commerce, the American Coalition for Clean Coal Electricity, Luminant Generation Co., and the National Rural Electric Cooperative Association.
The North Dakota brief also specifically states that part of the reason the state is suing the EPA over the 111(b) rule is because if the NSPS is overturned, the agency’s Clean Power Plan carbon emissions standards for existing coal-fired power plants, written under Section 111(d) of the Clean Air Act, must also be abandoned. “[T]he Rule for new EGUs is a legal prerequisite for EPA’s separate rule under CAA § 111(d) for existing EGUs, which injures North Dakota because it forces the State to either formulate a state plan or accept a federal plan, and it forces the shutdown or curtailment of lignite-fueled EGUs in the state. EPA admits the 111(d) rule could not legally exist without the Rule.”
A separate lawsuit has been filed challenging the Clean Power Plan, which requires states to develop action plans to meet federally set emissions reduction goals for existing coal-fired power plants. Oral arguments in that case were heard by a 10-judge panel at the U.S. Court of Appeals for the D.C. Circuit in late September. The case pits 27 states, along with numerous energy producers, utilities, and trade organizations, against the EPA.
The EPA has until Dec. 14 to respond to the NSPS petitioners briefs.
