Karen Frantz
GHG Monitor
1/17/14
Environmental Protection Agency Administrator Gina McCarthy took tough questions from Republicans on a draft rule limiting greenhouse gas emissions from coal-fired power plants at a hearing of the Senate Environment and Public Works Committee this week, which examined President Obama’s Climate Action Plan. Not surprisingly, the issue of whether carbon capture and storage technology—which the rule essentially requires for new-build coal plants—is “adequately demonstrated” on a commercial scale was made a focal point, following similar lines of questioning from Republicans at previous hearings on the EPA rule. Sen. John Barrasso (R-Wyo.) questioned McCarthy on a Bloomberg BNA article published recently that said White House officials had questioned whether the rule was based on viable technology. Barrasso said the article quoted OMB as saying “EPA’s assertion of the technical feasibility of carbon capture relies heavily on literature reviews, pilot projects and commercial facilities yet to operate. … We believe this cannot form the basis of a finding that CCS on commercial-scale power plants is ‘adequately demonstrated’.”
“As you know, and as stated before, the law requires that emission control performance standards must be ‘adequately demonstrated’,” Barrasso said. “And so my question is, what does the White House know that you haven’t acknowledged?” McCarthy replied that the EPA proposal went through interagency review. “You can be assured that OMB cleared the proposal,” she said. “And I am very confident that you will se that CCS is proven to be technically feasible in the data that we have provided.” Barrasso shot back that others connected with the Administration have also called into question the viability of CCS. “The cost of current carbon dioxide capture technology is much too high to be commercial viable; places the technology at similar economic thresholds of alternative clean carbon,” he said. “I mean, it just goes on and on about the lack of viability and availability of what you’re proposing. And it just seems to be a level of denial by the EPA as to what is actually available.”
The Climate Action Plan and New Source Performance Standards
President Obama unveiled his Climate Action Plan in June of last year, which aims to cut carbon emissions, prepare the country for the impacts of climate change and lead international action on global climate change. As part of the plan, he directed the EPA to draft restructured rules limiting carbon emissions from new power plants, know as New Source Performance Standards, which were unveiled in September. The EPA’s proposal sets separate CO2 emissions standards for coal and gas units. Depending on whether plant operators decide to measure CO2 emissions over a 12- or 84-month operating period, individual coal units would have to cap emissions at between 1,000 and 1,100 lbs CO2/MWh. Gas-fired turbines, depending on their size, must also meet a CO2 emissions limit of between 1,000 and 1,100 lbs MWh over a 12-month period.
The EPA is also working on developing emissions standards for existing power plants. The regulations are expected to include guidance to states, which will then pitch individual implementation plans to the agency specifying which types of emissions technologies they would like to use to comply. EPA has undertaken an outreach effort to stakeholders as it is crafting that proposal prior to its expected unveiling in June.
Energy Policy Act of 2005
McCarthy took some of the toughest questions on the New Source Performance Standards from Sen. David Vitter (R-La.), who asserted that the Energy Policy Act of 2005 prohibits the EPA from considering federally funded projects when setting standards. “And yet three such projects form the majority of EPA’s discussion regarding new plants, and there is no mention of EPAct 2005 in the over-400 pages of that proposal,” he said. “Recent press accounts report that you and the agency were unaware of this conflict with the EPAct requirement until it was pointed out by colleagues in the House of Representatives. How did the EPA miss this?” McCarthy responded that she had not been aware that the EPA should be raising EPAct issues specifically, but that she was currently doing so and that she does not think that the NSPS conflicts with the act. “Our understanding of the reading of the EPAct is that we can’t solely make a determination on the basis of EPAct-funded facilities,” she said. “There’s nothing in the law that precludes us from considering those in the context of a larger, more robust data set—which is what we are actually doing.”
Clean Air Act Legal Authority
At one point during the hearing, Sen. Barbara Boxer (D-Calif.) and Sen. Jeff Sessions (R-Ala.) butted heads over the EPA’s legal authority and requirement to regulate greenhouse gases. During his opening remarks, Sessions asserted that the President’s Climate Action Plan was attempting to give the administration the power to regulate in ways Congress had not intentioned. “I reject the notion that the 1970 Clean Air Act gave EPA the power to force every coal-fired power plant in America to capture and store carbon dioxide,” he said. “Carbon dioxide was never even contemplated when the Clean Air Act was passed.”
But Boxer later said she was disturbed by the assertion that the Administration was acting by fiat, pointing to a set of Supreme Court decisions that gave the EPA the authority to regulate GHGs. “The Supreme Court said, and I quote, that ‘The statute is unambiguous’ and the Clean Air Act covers carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, without a doubt’.” She continued on over Sessions’ protestations that she was misinterpreting his remarks to ask McCarthy, “Isn’t it true that if you did not move forward with the Climate Action Plan, if you did not try to regulate this carbon pollution, which is so damaging and which is covered by the Supreme Court decision, that you could be sued and you could be harmed if you didn’t do this?” McCarthy responded that the EPA has been petitioned and is in litigation over the regulation of carbon emissions in several sectors because some people think the Agency has not done enough. “Once you decide it is a pollutant under the law and that it endangers, EPA is obligated to look at those public health and environmental impacts and to consider those in their regulations,” she said, adding that Obama “made the very sensible and commonsense decision to tell us to focus on power plants first, because power plants represent 33 percent of the carbon emissions that are being emitted in the U.S. and 60 percent of the emissions from stationary sources. So we’re trying to be very deliberate and careful in how we apply the Clean Air Act.”
Sen. James Inhofe (R-Okla.) also raised questions over stipulations of the Clean Air Act, asking McCarthy about section he said directs the administration to do an analysis on employment impacts of the rule. “We’re actually doing the best we can to do a complete economic analysis,” McCarthy said. “When we do our major rules, we do look at employment impacts to the extent that peer reviewed science and modeling allows. … We’re pulling together an expert panel under our science advisory board to continue to look at these issues and to mature that science as best we can.” Inhofe asked if the Agency would hold off on implementation of the rules until after the analysis, but McCarthy seemed to equivocate. “Senator, what you can be assured of is when we do rules, we’ll do it to the full extent that the science is available and the analysis can be done in a way that’s consistent with all the requirements at OMB.”
NSPS Federal Register Delay
Inhofe, along with Vitter, also took McCarthy to task for a three-month delay between the unveiling of the retooled NSPS rule and its publication by the Federal Register, claiming the delay was a political ploy designed to postpone controversial news during an election year. Inhofe said that new rules for power plants must be finalized within a year of the proposal’s publication by the Federal Register or it is invalidated, and suggested that the EPA pushed back the publication of the rule so that it would be finalized eight weeks after the 2014 elections rather than six weeks before. “Is there any time that during this process that you or the EPA had a conversation with the White House or OMB in terms of the timing of the release on the federal registry?” he asked. But McCarthy said that the delay was solely due to a backup in the Federal Register. “We frequently asked when it was going to come out and how quickly because it was available on our webpage. We wanted to start the formal public process,” she said.
