Strong Opposition to EPA Proposed Carbon Emission Regulation Questions whether Carbon Sequestration Technology is Actually Available

By: Amanda Johnson, Associate

The Environmental Protection Agency’s (EPA) newly proposed standards for greenhouse gas (GHG) emissions from stationary sources only came out Friday September 20, 2013, and the standards are already facing strong opposition from industry[1] and its supporters.[2] The Administration previously proposed these standards on April 13, 2012 as emission standards for stationary fossil fuels sources.[3] The EPA chose to re-propose the rules making significant changes after receiving 2.5 million public comments to the April 2012 proposal, providing more justification for the technologies required by the rule.[4]

The new rules only address new stationary sources that emit carbon dioxide and do not disturb the sources already in existence.[5] The proposal is based on the EPA finding that GHG’s have contributed to climate change and that their continued release at current levels threatens the health and welfare of this generation and future generations.[6]  The purpose of the rules is to provide uniform national limits for the amount of greenhouse gasses that new power plants are allowed to emit, which do not affect power plants already in existence.[7] The new rules would require future electric utilities to limit GHG emission from fossil fuel fired utility boilers to 1,100 lbs CO2/MWh over a 12-month period and limit GHG emissions from integrated gasification combined cycle units to 1,000 to 1,050 lbs CO2/MWh over a 7-year period. The standard proposed for natural gas fired stationary units is 1,000 lbs CO2/MWh for units larger than 800 mmbtu/hr and 1,100 lbs CO2/MWh for units smaller than 800 mmbtu/hr.[8] These standards were set based on the “best system of emissions reduction adequately demonstrated” for the public utilities affected.[9] This demonstrated ability of emission reduction requires carbon capture and storage (CCS), and is likely to be challenged by the parties affected.[10]

Industry representatives have already voiced their opinions about flaws in the proposal.[11] One argument industry has against the proposed rules is that there was not a specific “finding of significant endangerment” for the electric utility industry.[12] The EPA has made a “finding of significant endangerment” for greenhouse gases, but the finding specifically applied to mobile sources, not stationary utilities.[13] Supporters of the proposed rules, however, say that the finding is not required for each source category the EPA regulates and that the combination of the finding that greenhouse gases threaten the health and welfare of people with the finding that stationary utilities produce harmful pollution,  is enough to support this regulation.[14]

The other argument made against the proposed rules is that the requirement of CCS technology to reach these standards effectively eliminates the possibility of any new coal fired power plants because the technology is too costly.[15] The legal argument supporting this determination, is that EPA based its standards on federally funded demonstration projects, which do not adequately demonstrate the best available control technology.[16] This argument is interesting, considering that the coal industry lobbied against legislation (i.e. the Waxman-Markey Bill) that would have provided billions in federal funds for the implementation of CCS.[17] Furthermore, the fact that the Kemper County, Mississippi CCS power plant is expected to go online next year hinders the industry’s argument that this technology is not actually available.[18] The question of where the funding originates for a demonstrated ability, and its effect on the adequacy of that demonstration is unanswered. Considering that the money provided by the Department of Energy, is only a fraction of what was spent on the CCS power plant,[19] it is not likely a court will find the demonstration inadequate.

These proposed rules face an uphill legal battle if and when the EPA officially issues them, as demonstrated by industry’s current opposition.[20] Nevertheless, it is still uncertain whether the industry’s arguments will successfully defeat the new standards. However, as United Nations scientists have recently reported that they are more certain than ever that human actions have, and are continuing to cause climate change,[21] we must ask, who are these challenges benefiting?


[1] The term industry is used here to refer to those regulated entities that would be subject to or affected by the proposed regulation.
[2] Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units (proposed Sept. 20, 2013)(to be codified 40 C.F.R. § 60) available at http://www2.epa.gov/sites/production/files/2013-09/documents/20130920proposal.pdf; Jean Chemnick, EPA’s New Carbon Rule Sparks Battle Over CCS, With Legal Challenges Likely, Greenwire (Sept. 20, 2013), http://www.eenews.net/greenwire/2013/09/20/stories/1059987620.
[3] Regulatory Impact Analysis for the Proposed Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units, EPA at 1-1, September 2013.
[4] Id.
[5] Id.
[6] 74 Fed. Reg. 66,496 (2009).
[7] Jean Chemnick, EPA Proposes Rule Requiring New Coal Plants To Capture, Store CO2, Greenwire (Sept. 20, 2013, 8:54 AM), http://www.eenews.net/greenwire/stories/1059987589/.
[8] EPA Fact Sheet: Reducing Carbon Pollution From Power Plants, Moving Forward on the Climate Action plan, EPA at 3, (September 20, 2013) available at http://www2.epa.gov/sites/production/files/2013-09/documents/20130920factsheet.pdf.
[9] Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units (proposed Sept. 20, 2013)(to be codified 40 C.F.R. § 60) available at http://www2.epa.gov/sites/production/files/2013-09/documents/20130920proposal.pdf.
[10] Valerie Volcolvici, Faced with the Obama administration’s new crackdown on power plant emissions, the coal and electric utility industry is honing a legal strategy it believes could derail the measures, Reuters (September 20,2013), http://www.reuters.com/article/2013/09/20/us-usa-energy-emissions-analysis-idUSBRE98J0Q620130920.
[11] Jean Chemnick, Industry sees new EPA rule as legally unstable, E&E Reporter, http://www.eenews.net/eenewspm/2013/09/20/stories/1059987639.
[12] Id.
[13] 74 Fed. Reg. 66,496 (2009).
[14] Chemnick, supra note 11.
[15] Volcolvici, supra note 10.
[16] Id.
[17] Id.
[18] Carbon Capture and Storage Technologies, MIT http://sequestration.mit.edu/tools/projects/kemper.html.
[19] See Volcolvici, supra note 10.
[20] See Volcolvici, supra note 10; Chemnick, supra note 11.
[21] U.N. Working Group I Contribution to the IPCC Fifth Assessment Report, Climate Change 2013: The Physical Science Basis Summary for Policymakers, September 27, 2013, available at http://www.climatechange2013.org/images/uploads/WGIAR5-SPM_Approved27Sep2013.pdf.

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