Abby L. Harvey
GHG Monitor
9/26/2014
Top Republicans on the House Energy and Commerce Committee challenged in a letter to Secretary of Energy Ernest Moniz this week the legality of the Environmental Protection Agency’s selection of Carbon Capture and Storage Technology as the Best Source of Emission Reduction (BSER) in its proposed New Source Performance Standards (NSPS) for coal-fired power plants. The proposed NSPS essentially mandates the use of CCS on any new-build coal-fired power plant. While the EPA has insisted that the technology has been adequately demonstrated, Republican lawmakers have argued that that distinction does not comply with the Energy Policy Act of 2005 (EPAct05) because the projects EPA cited in making its determination were federally funded. “Information developed in our investigation has raised questions about EPA’s compliance with EPAct05, which strictly prohibits consideration of carbon capture technologies at facilities that have received federal funding to be ‘adequately demonstrated’ under section 111 of the [Clean Air Act],” the lawmakers wrote in the Sept. 23 letter.
The letter goes on to say that the implementation of EPAct05 is the responsibility of the Secretary of Energy and states the committee’s intention to “examine the Department of Energy’s implementation of EPAct05 provisions relating to clean coal technologies and the information it developed for or shared with other federal entities relating to these provisions.” The letter requests several documents be provided by Oct. 7 including legal memoranda, analyses and reports concerning the EPAct05’s Clean Coal Power Initiative and records of consultations and communications with the EPA. The letter was signed by Committee Chairman Fred Upton (Mich.), Oversight and Investigations Subcommittee Chair Tim Murphy (Penn.), Energy and Power Subcommittee Chair Ed Whitfield (Ky.), and Reps. Joe Barton (Texas), Marsha Blackburn (Tenn.) and Michael Burgess (Texas).
Latest in History of NSPS Challenges Under EPAct05
The House energy committee began investigating the NSPS’s compliance with EPAct05 shortly after the rule was proposed in September 2013. In a Nov. 15, 2013, letter to EPA Administrator Gina McCarthy, the committee noted that the EPA had cited four projects in its determination that CCS was adequately demonstrated, three of which were funded by the Clean Coal Power Initiative. The forth cited project was the Boundary Dam Project in Saskatchewan, Canada. “While EPA maintains that CCS for commercial coal-fired power plants is ‘adequately demonstrated’ based on these government-funded projects, the Energy Policy Act of 2005 prohibits EPA from setting a performance standard under [Clean Air Act] Section 111 for commercial power plants based on the use of technology at CCPI projects. The Energy Policy Act of 2005 specifically prohibits EPA from considering technology used at a facility receiving assistance under the Department of Energy’s CCPI, or at a facility that is receiving an advanced coal project tax credit, as being ‘adequately demonstrated’ for purposes of Section 111 of the [Clean Air Act],” the committee wrote.
In February 2014, after the release of a second draft of the proposed NSPS, the EPA responded to the EPAct05 allegations in a Notice of Data Availability stating that because the BSER was not determined solely on data from government funded projects, their conclusion was well-founded. “The EPA’s rationale, insofar as is relevant for present purposes, is that partial capture is technically feasible and can be implemented at a reasonable cost,” the EPA said. “In discussing its rationale, the EPA referenced some facilities that have received financial assistance under the EPAct05, including being allocated tax credits pursuant to IRC section 48A. As explained in the [technical support document], however, the EPA’s rationale does not depend solely upon those projects, and the determination remains adequately supported without any information from facilities that have been allocated the IRC section 48A tax credit. Thus, the EPA’s proposed standards, which are based on its determination that partial capture CCS represents the best system of emission reduction adequately demonstrated, are not beyond the scope of its legal authority.”
