Abby L. Harvey
GHG Monitor
5/15/2015
Sen. Shelley Moore Capito (R-W.V.) introduced a bill this week that would place strict limits on the Environmental Protection Agency’s ability to regulate carbon emissions from new and existing coal-fired power plants. The “Affordable Reliable Energy Now Act [ARENA]” contains language that would repeal the EPA’s proposed carbon emissions standards for new and existing coal-fired power plants. The proposed regulations in question would largely mandate the use of carbon capture and storage technology on all new-build plants and would require states to develop action plans to meet federally set emission reduction goals related to existing coal-fired plants. “Our bipartisan legislation would empower the states to protect families and businesses from electricity rate increases, reduced electrical reliability and other harmful effects of the President’s Clean Power plan,” Capito said announcing the bill during a press conference this week.
Further, the bill contains language that would seek to remove any ambiguity in the Clean Air Act regarding the EPA’s authority to regulate carbon from coal-fired power plants. This language relates to an underlying legal argument that while the section of the Clean Air Act under which the EPA has developed the existing source rule does grant the EPA authority to require states to regulate existing-source emissions, it excludes the regulation of air pollutants emitted from a source that is already regulated under Section 112. Coal-fired power plants are already regulated under Section 112 of the Clean Air Act. The EPA has argued that an error in the amendments to the Clean Air Act has created an ambiguity, allowing the agency to develop the regulations. Capito’s bill would ensure that the Clean Air Act reads without that ambiguity, making it nearly impossible for EPA to develop future carbon emissions regulations.
Technology Standards Must be Commercially Achievable Under Bill
The Capito bill takes aim not only at the “Clean Power Plan” existing source regulations, but also the EPA’s proposed New Source Performance Standards (NSPS), which would largely mandate the use of CCS on all new-build coal fired power plants. “Our bill also would require [that] any greenhouse gas standards set by the EPA for new coal-fired power plants are able to be achieved by commercial power plants operating in the real world,” Capito said. Under this provision, any technology-based standard must be proved achievable for a minimum of one year on several plants in the United States, excluding any federally funded demonstration projects.
Many Provisions Shared with House Ratepayer Protection Act
Many provisions in the bill are similar to those in the House “Ratepayer Protection Act” that was reported out of committee in late of April. Both bills would allow states to opt out of the EPA’s “Clean Power Plan” existing source regulation if the governor could prove that complying with the rule would “have a negative effect on economic growth, competitiveness, and jobs in the State; the reliability of the electricity system of the State; or the electricity ratepayers of the State, including low-income ratepayers, by causing electricity rate increases,” the text of the Capito bill reads. Unlike the Ratepayer Protection Act, the Capito bill would require the EPA to develop “state-specific model plans to demonstrate with specificity the areas in, and means by which, each State will be required to reduce the greenhouse gas emissions of the State under the rule.”
Both the Capito bill and the House bill would delay the deadline for compliance with the existing source regulation until all legal challenges are final and are no longer subject to appeal or review. The Clean Power Plan is currently the focus of several legal challenges and more are expected to be filed when the rule is finalized this summer.
Bill Garners Mixed Response
Environmental organizations were quick to respond to the bill, calling it “dangerous” in the face of the fight against climate change. “The Clean Power will reduce pollution, protect the health of American families, and address the serious threat of climate change. Sen. Capito’s bill would seriously undermine these important goals. This legislation would allow states to opt-out of clean air protections and hobble American’s progress toward clean energy. Instead of obstruction, Congress should be working to build a prosperous clean energy future,” Elizabeth Thompson, president of Environmental Defense Fund (EDF) Action, said in a release.
The American Coalition for Clean Coal Electricity applauded the bill, though, stressing a need to support American consumers. “Sen. Capito and her colleagues are putting the best interests of consumers and our nation’s economy ahead of EPA’s political gamesmanship,” Mike Duncan, president and CEO of ACCCE, said in a release. “We hope Sen. Capito’s bill will demonstrate to EPA that enough is enough. It’s well past time for American consumers and businesses to be placed at the forefront of this discussion.”
