Karen Frantz
GHG Monitor
1/24/2014
The Environmental Protection Agency’s proposed rule that would limit greenhouse gases from new coal-fired power plants has come under legal fire with a new lawsuit from the state of Nebraska challenging the new source performance standards under the Energy Policy Act of 2005. The suit, filed in the U.S. District Court for the District of Nebraska last week, takes aim at the rule’s determination that partial carbon capture and storage is the best system of emission reduction for new coal plants—essentially mandating that any new coal plant be fitted with the technology—because that determination is based on several CCS demonstrations that received federal funding.
The complaint argues that the Energy Policy Act prohibits the EPA from basing such emissions control technology on federally funded projects, and seeks a declaration that the “proposed rule’s consideration of federally-financed CCS projects is ‘not in accordance with law’ and ‘in excess of statutory … authority.’” It also asks the court for injunctive relief and an order “directing EPA to cease further action on the NSPS rulemaking and withdraw the proposed rule.”
The tactic follows similar lines of attack against the EPA rule from its detractors, who argue that CCS has not been “adequately demonstrated” on a commercial scale, and thus say mandating the technology for new coal plants is too high a bar to be realistically met. Nebraska Attorney General Jon Bruning echoed such complaints when he said in a statement announcing the lawsuit that “the impossible standards imposed by the EPA will ensure no new power plants are built in Nebraska. This federal agency continues to overstep its authority at the detriment of Nebraska businesses.”
Energy Policy Act
The EPA has pointed to three CCS projects that have received funding under the Department of Energy’s Clean Coal Power Initiative as evidence that carbon capture and storage has been adequately demonstrated for coal power plants. But Republicans in Congress recently latched onto those projects and the Energy Policy Act as a point of contention, with four House representatives sending a letter to EPA Administrator Gina McCarthy in November arguing that “EPA’s consideration of CCPI projects to determine that CCS for coal-fired power plants is ‘adequately demonstrated’ is prohibited,” and some senators at a recent Environment and Public Works Committee hearing questioning McCarthy on the rule’s argued violation of EPACT.
But McCarthy said at the hearing that she does not believe the EPA rule 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.”
And proponents of the EPA rule have also dismissed the argument. Ann Weeks, Senior Counsel and Legal Director at the Clean Air Task Force, argued in a blog post that “the language of the statutes does not compel EPA to pretend that projects that have received taxpayer support do not even exist. And, although it may be arguable that the performance of a facility that has received a subsidy can’t be relied on by EPA as the sole evidence that a technology is adequately demonstrated, EPA has not done so. Instead, EPA relies on a host of other projects, in the U.S. and around the globe, many of which have been in operation for decades, to show that the technology is adequately demonstrated.”
