Coal industry questions legal foundation of EPA’s modified power plant rule
In comments to EPA’s docket for the rule, the National Mining Association warned that the modified power plant rule — which was released June 2 together with EPA’s sweeping proposal for existing power plants — could not act as a “necessary predicate” for the Clean Power Plan.
That’s because the Clean Air Act requires that a rule for new sources — written under Section 111(b) of the statute — be final when it finalizes an existing source rule for the same category under Section 111(d) of the statute. The agency has proposed two separate 111(b) standards for new and modified sources, but only the proposal for new units would qualify as the necessary predicate to allow EPA to move forward with its existing power plant rule, NMA says.
The new power plant rule has its own problems, according to industry critics. For one thing, the rule EPA unveiled in September 2013 would require all new coal-fired units to capture a share of their emissions through the use of carbon capture and storage technology. But the industry has long predicted that the New Source Performance Standards will be legally vulnerable because EPA “overreached” in designating CCS as the best system of emissions reduction for new coal units when, the industry says, it has not reached the appropriate stage of development.
And if the 2013 proposal is finalized in its current form and then overturned in court — or if EPA rescinds it — NMA warns that the existing source standard would sink along with it.
The agency holds that its new power plant rule is on firm ground, but it also says that modified rule could act as a legal backstop for the existing power plant curbs. After all, the modified rule is also written under Section 111(b) of the law — but the mining industry disputes that interpretation.
“Not so,” Bruce Watzman, senior vice president for regulatory affairs at NMA, said in a letter to EPA submitted with the comments. EPA in its preamble makes it clear that it is not regulating modified sources as new ones, he notes. The modified plants rule is more lax than the one for new plants and does not require CCS.
“They can’t have their cake and eat it too,” Watzman said in an interview this afternoon. “They’re trying to have it both ways.”
Watzman also said that EPA has violated the spirit of the law by making its restraints for existing sources potentially tougher than its ones for modified or new units.
“They reversed the stringency requirements,” he said. While EPA has not proposed requiring existing coal units to use CCS to capture their emissions, the agency’s existing source rule sets low carbon intensity rates for many states, and some in the utility sector say it might encourage utilities to prematurely shutter existing fossil fuels units in favor of new gas plants — which can easily achieve EPA’s Section 111(b) emissions requirements.
Also today, the coal advocacy group American Coalition for Clean Coal Electricity released a report stating that EPA’s existing power plant rule would result in “significant negative economic impacts.”
The report, which relies on analysis by NERA Economic Consulting, showed the rule would result in hundreds of billions of dollars in compliance costs, double-digit electricity hikes in most states and little impact on global emissions.
“The president’s regulatory crusade to be a global leader on climate change is plagued with problems,” said Mike Duncan, president and CEO of ACCCE. “I have one thing to say to the president — pull this rule before irrevocable consequences hit American people and businesses.”
The public comment period for the modified rule closes today, while EPA extended the deadline for the existing power plant rule through Dec. 1.