STATE OFFICIALS SAY EPA EXCEEDING ITS AUTHORITY WITH CO2 REGS

Tamar Hallerman
GHG Monitor
9/20/13

Attorneys general from 17 states say they are concerned that the Environmental Protection Agency is poised to exceed its statutory authority under the Clean Air Act in its development of carbon limits for existing coal plants in the coming years. In a white paper sent to EPA Administrator Gina McCarthy and released late last week, the AGs acknowledged that the agency has yet to propose CO2 emission performance standards for existing power plants. Regardless, the officials said based on EPA’s initial “aggressive” proposal for new power plants in April 2012, they expect a similar stance for the standards for existing sources. “Our concerns are justified given EPA’s unwillingness to appropriately defer to state authority under the Clean Air Act in recent years,” Nebraska Attorney General Jon Bruning wrote on behalf of his counterparts in a Sept. 11 letter to McCarthy.

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. What is still unclear is whether EPA can mandate which emissions reduction technologies states are required for states to use to comply with the guidance. The AGs said EPA’s authority is “limited to establishing procedures whereby states develop and implement performance standards for existing [electric generating units].” “We trust EPA will adhere to the limitations of its authority under the Clean Air Act when adopting guidelines for the states’ development plans for GHG performance standards for existing EGUs,” the AGs wrote.

The AGs questioned whether carbon capture and storage technology is adequately demonstrated enough for EPA to mandate under the standards. “It seems incontrovertible that no post-combustion reduction system has been ‘adequately demonstrated’ for CO2 emissions from EGUs on a broad, commercial scale,” the officials wrote. “A system of carbon capture and storage is perhaps a decade away from being technologically and economically feasible. A permitting system for storing CO2 emissions underground and a set of legal rules governing liability for CO2 storage has not been put in place in most states. Without an adequately demonstrated post-combustion control technology, EPA must look to standards based on cost-effective efficiency improvements at electric generating units, because more efficient units will produce lower CO2 emissions per unit of heat input or electricity output.”

Whitfield Emerges as Anti-NSPS Leader

House Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.) released the white paper late last week ahead of a contentious Sept. 18 hearing on the President’s climate plan. A vocal advocate of the coal industry, which has a strong presence in his district, Whitfield has put himself squarely in the center of the debate about EPA regulatory authority and what he describes as the Obama Administration’s “war on coal.” “The Obama Administration continues to unilaterally bypass the role of the states, while stifling job creation by eliminating affordable energy through new regulations that will only be another blow to our fragile economy,” Whitfield said in a Sept. 13 statement. “The most frustrating part is the Administration is doing this with no public debate, and many in the United States Congress and individual states have been expressing deep concern about the impact that this will have on our ability to remain competitive in the global marketplace.” Whitfield said he is currently preparing a bill to sharply limit EPA’s ability to regulate CO2 from power plants.