Abby L. Harvey
GHG Monitor
9/5/2014
Environmental Protection Agency Administrator Gina McCarthy stressed this week the importance of the agency’s proposed carbon emissions regulations for existing coal fired power plants while the proposed regulations continue to come under fire from lawmakers and a coalition of attorneys general from a number of states. The proposed regulations set carbon emission reduction targets for each state and require the states to develop action plans to meet the reduction goals. “We are living in a changing world, a world in which we have to embrace this challenge of climate change. We have to move forward and frankly we are so far ahead in developing the very technologies and thinking that we need to bring to the table than any other country, we had best make the investments that make it profitable for our country,” McCarthy said at Barclays CEO Energy – Power Conference this week.
McCarthy also discussed the need for public involvement in developing the final rule. The public comment period for the proposed rule is open through October and four two-daylong public hearings were held in various cities in late July. “We’ve received hundreds of thousands of comments. I would venture to guess we’ll be up well above a few million when the comment period ends in October,” McCarthy said. “We have actually done everything we could to solicit that many comments because this is important. We’ll have dialogues with every human being who wants to talk about it. We will continue to do that. We will look at the comments moving forward and we think there are tremendous opportunities for us to move forward in a way that is flexible enough for the states.”
NRDC Involvement in Drafting Questioned
This week, Congressional Republicans outlined plans in a letter to McCarthy to investigate allegations that the Natural Resources Defense Council had played an outsized role in drafting the proposed regulations. “It appears that the NRDC’s unprecedented access to high-level EPA officials allowed it to influence EPA policy decisions and achieve its own private agenda. Such collusive activities provide the NRDC, and their financial backers, with an inappropriate opportunity to wield the broad powers of the executive branch,” Sen. David Vitter (R-La.), the ranking member of the Senate Environment and Public Works Committee; and Rep. Darrell Issa (R-Calif.), chair of the House Oversight and Government Reform Committee, wrote in the Sept. 2 letter to McCarthy.
The allegations stem from a July New York Times article that suggested that the regulations were based on an NRDC proposal. The claim, McCarthy said, was “preposterous” in an internal e-mail sent to staff following the publication of the article. “According to an article from Monday, you just cut and pasted a particular NGO’s proposal and called it a day. If you’re laughing right now, it’s because you know just how preposterous that is. That is just not how our process works,” McCarthy wrote.
The EPA has continued to deny that the NRDC had a disproportionate impact on the drafting of the regulations. “If anyone deserves credit for giving us ideas, it’s the states and communities on the ground that are already cutting pollution through the approaches we’re calling for in the proposal – cleaner, more efficient energy, energy efficiency and renewable energy. Many states are in the process of implementing renewable energy goals or renewable portfolio standards and they informed us about how they went about undertaking those activities that had beneficial impact on CO2 emissions,” Liz Purchia, EPA Press Secretary, told GHG Monitor this week. “It wasn’t about a series of proposals, more about on the ground experiences and policy approaches that states and utilities are already taking. Having clean air should not be a political issue. We are doing our jobs—as the courts have reaffirmed for us—to protect public health and the environment.”
The NRDC also responded to letter, though without directly addressing the accusations being made. “Sen. Vitter, Rep. Issa and their colleagues are acting as if fighting for public health were an un-American activity. Democratic and Republican presidents dating back to Dwight Eisenhower have worked to curb pollution and protect our natural resources. It is tragic that in 2014, Sen. Vitter and his colleagues fail to understand that Americans want the air they breathe and the water they drink to be clean,” NRDC Federal Communications Director Ed Chen said in a written response.
Coalitions of Attorneys General Battle over Legality of Regs
Meanwhile, two coalitions of state attorneys general have formed to debate the legality of the regulations for existing coal fired power plants in connection with a 2010 settlement made between a previous coalition led by New York state and the EPA. In the settlement, the EPA committed to developing standards of performance for greenhouse gas emissions from new and existing fossil fuel burning power plants under section 111 of the Clean Air Act.
That settlement is the centerpiece of a motion filed Aug. 1 by a coalition lead by West Virginia, which claims that the EPA entered into the settlement unlawfully, making commitments which they did not have the legal authority to meet. They argue that because the EPA had already issued regulations for these sources under Section 112 of the Clean Air Act, they cannot legally issue regulations for the same sources under Section 111 and thus the settlement is invalid. “Section 112 permits national regulations of sources of hazardous air pollutants. Section 111(d), on the other hand, is a rarely used provision that grants EPA authority to require States to regulate emissions from existing sources on a state-by-state basis under certain narrow circumstances, but that expressly excludes from EPA’s authority the power to regulate ‘any air pollutant . . . emitted from a source category which is regulated under [Section 112],” according to the coal-state coalition’s motion.
Further, the coal state coalition filed a motion early this week to expedite the legal process under the argument that “failure to coordinate the briefing schedule and to expedite consideration would visit irreparable injury on the States. Absent the requested relief, the States will not receive a ruling on their Petition for Review for perhaps a year or more. Each additional month that elapses without relief will impose significant, unrecoverable costs on the States, which must now begin the costly process of designing State Plans to comply with the Section 111(d) rule.”
Following this week’s motion by the coal state coalition, New York State Attorney General Eric Schneiderman announced that with a coalition of 10 other states, the City of New York and the District of Columbia, he has filed a motion to intervene in the challenge being brought against the 2010 settlement. The New York coalition wrote in their motion to block the coal state coalition’s initial motion that “to the extent that petitioners seek to block the finalization of the Proposed Guidelines, Proposed Intervenor States have an interest in seeing the rulemaking process move forward. Although Proposed Intervenor States dispute petitioners’ position that there would be any legal effect on the Proposed Guidelines of invalidating the settlement agreement, we have an interest in being able to present that view to the Court. Proposed Intervenor States, as states and other governmental entities, have a compelling interest in curbing the harmful effects of climate change on their citizens and natural resources from the largest source of these emissions.”
