EPA WRAPS UP LISTENING TOUR ON PROPOSED EMISSIONS RULE

Karen Frantz
GHG Monitor
11/15/13

Representatives from the coal industry, environmental groups and other interests offered at times starkly different opinions on how the Environmental Protection Agency should develop its greenhouse gas limits for existing power plants at a listening session in Washington last week—one of the last such sessions to be held amid an 11-stop tour. The EPA is expected to unveil carbon pollution standards for existing power plants by June 2014 under President Obama’s climate action plan. While the agency was required to issue a lbs/MWh standard for CO2 under a similar rule for new power plants, the Clean Air Act requires that EPA issue procedural guidance for states to hammer out and submit their own standards for the existing source rule. Commentators at the meeting largely fell into two categories: those who said regulation was necessary to protect the environment and public health and those who spoke of EPA overreach and decried potential effects of carbon limits on industry and jobs. Others continued to decry what they said was the listening tour’s snub of coal country.

Supporters of EPA regulation commended the agency for taking on greenhouse gas emissions from existing plants. David Scott, president of the Sierra Club’s Board of Directors, said standards are “an important and historic first step” to addressing global climate disruption. “Carbon pollution from power plants is the largest stationary source of U.S. carbon dioxide emissions and immediate action to slash and ultimately end that carbon pollution is the only way to ensure that future generations inherit a habitable planet,” he said.

Martin Hayden, vice president of Earthjustice, also said that to meet President Obama’s goal of a 17 percent reduction in climate pollution by 2020, any rule for existing power plants “must ensure a 35 to 40 percent reduction from 2005 levels”—a reduction that is 25 to 30 percent less than 2012 levels. “The EPA’s rule must set a very clear floor for the states with transparent guidance about what it will take for states to get their plans approved,” he said. “It is important for both ensuring that the plans effectuate the president’s climate action plan and to get legally sound state implementation plans as quickly as possible.” He added that many coal plants are operating beyond their “intended useful life,” which he said may be taken into consideration in setting performance standards for existing facilities under the Clean Air Act. “Here that factor weighs in favor of setting protective standards that will help promote the shift to clean energy that is already underway,” Hayden said. “Making progress on reducing carbon pollution from existing power plants will be dependent on both the vigor and enforceability of the rule in the state or federal implementation plans that will implement it. Therefore it is vital that the emissions reductions adopted in the rule be measurable, verifiable and enforceable in the subsequent implementation plans.”

Debate Over Clean Air Act Limits

But some charged the EPA with overstepping the bounds of the Clean Air Act as it seeks to regulate greenhouse gases, saying that the act intends for states and local governments to take primary responsibility for air pollution prevention. “EPA has started replacing this principle of cooperate federalism with command and control,” said John Eick, legislative analyst with the American Legislative Exchange Council, a voluntary membership organization of state legislators. “EPA’s plan to regulate greenhouse gases under the Clear Air Act is a great example of this shift. Pursuant to section 111(D) of the Clean Air Act, EPA is statutorily limited to merely establishing a procedure by which states can submit plans for regulating existing sources of greenhouse gases. This section does not grant EPA the power to create rules establishing standards. This is a critical distinction. … This section of the Clean Air Act clearly delineates explicit roles for both EPA and the states to follow—explicit roles that, unfortunately, EPA is failing to abide by.”

Greg Bertelsen, a member of the National Association of Manufacturers, also said he thought there were limits to what the Clean Air Act permits. “An attempt to expand beyond what the law allows will inevitably lead to delays and costly litigation and perpetuate an air of regulatory uncertainty that will stifle growth,” he cautioned. “We continue to believe the Clean Air Act is the wrong tool for addressing greenhouse gas emissions, a belief that is supported by a literal read of the statute.” He also said that the EPA should consider the limits of what power plants can do when considering new rules. “Drafting a regulation that requires more than what technology allows leaves existing plants with only one choice: shutting down,” he said.

EPA Under Fire for Skipping Coal Country

Meanwhile, politicians and other representatives from coal states continued to criticize the EPA for failing to hold listening sessions in their districts. The listening sessions, which concluded last week, were held in each of the ten EPA’s regional offices, located in Boston, New York City, Philadelphia, Atlanta, Chicago, Dallas, Kansas City, Denver, San Francisco and Seattle, and also at the EPA’s headquarters. But many argued that additional listening sessions should have been set up in other major coal states, such as West Virginia, Kentucky and Wyoming.

At last week’s meeting, Senate Minority Leader Mitch McConnell (R-Ky.) strongly criticized the EPA for failing to hold a listening session in his home state. “Other regions of the country … are well aware that coal provides nearly 40 percent of our nation’s electricity,” he said. He said he asked the EPA to hold a listening session in Kentucky “to hear the concerns of coal country” but the agency refused. “I decided on behalf of Kentucky’s coal miners and their families that I would bring their concerns to you myself.”

Janet McCabe, acting EPA air chief, defended the listening tour, though, in a Nov. 1 blog post, saying that in addition to the sessions, the agency has been meeting with industry leaders and CEOs from the coal, oil and natural gas sectors and has been gathering feedback online. “Keep in mind, all of this outreach and engagement is happening well before we propose any guidelines,” she said. “When we issue a proposal next June, the more formal public process begins—including a public comment period and an opportunity for a public hearing—which gives folks even more ways to share their ideas.”