N.C. joins push-back against EPA power plant rules

Source: Jean Chemnick, E&E reporter • Posted: Monday, February 3, 2014

North Carolina Environment and Natural Resources Secretary John Skvarla told U.S. EPA Administrator Gina McCarthy in a letter obtained by Greenwire that her agency’s authority to regulate existing power plant emissions under Section 111(d) of the Clean Air Act is limited, if it exists at all.

The letter is another example of coal-dependent states’ continuing efforts to limit the scope of an upcoming EPA rule for power plant carbon emissions — a mandate some state lawmakers worry will undermine fossil-fuels-based economies.

The letter, which was dated Jan. 27, references a host of legal questions raised before by industry lawyers and other national opponents of the EPA rules and begins by reaffirming states’ role in shaping the rule, which forms the cornerstone of President Obama’s Climate Action Plan.

“I am sure that your agency agrees that cooperative federalism lies at the heart of the [Clean Air Act] 111(d) process and therefore it is critical that any emission guidelines proposed by EPA should respect that principle,” Skvarla said.

His letter references a discrepancy in the wording of the law that some say precludes EPA from regulating utilities for carbon dioxide under 111(d), because the sector is already being regulated for mercury and air toxics (Greenwire, Oct. 24, 2013).

It goes on to state that “in cases where the EPA does have the authority” to craft 111(d) regulations, the agency is limited to offering guidelines for “adequately demonstrated” ways individual power plants can curb their emissions on-site. The law does not allow EPA to use that section to craft the kind of broad, systemwide regulatory plan that environmentalists have touted as a means to significantly cut the sector’s carbon emissions.

The law does not allow EPA to set a target for emissions reduction and require states to meet it, the letter argued. If adequately demonstrated technology does not exist to allow utilities to reduce emissions by a set target, it argues, the target is unachievable.

Skvarla’s letter also asked EPA to provide states with additional time to phase in the existing power plant rule, so they will not expend resources implementing a rule that might ultimately be vacated in court.

While his letter focused on the existing power plant rule, which is due to be proposed by June 1, it also raised several oft-cited objections to the new power plant proposal issued Sept. 20. Among these was the role Energy Department-funded carbon capture and storage projects played in EPA’s finding that CCS is ready to allow new coal-fired power plants to comply with a new mandate for CCS. Three of the four projects EPA refers to in its proposal received government funds, and House Republicans have noted that a 2007 energy law prohibits government-backed projects from forming the basis of EPA air quality rules.

The letter comes as a bill continues to move through the Virginia Senate that its authors hope will limit the effect of EPA’s existing power plant regulation on that state’s utilities (Greenwire, Jan. 30)

But the bill authored by GOP Sen. Charles Carrico was substantially amended during yesterday’s markup in the Senate’s Agriculture, Conservation and Natural Resources Committee. Where the measure would have mandated that state regulators limit their implementation plan to what can be achieved on-site at individual power plants, it now would require a study to look at ways to limit emissions. The panel also voted to strike the bill’s prohibition on Virginia’s submitting an implementation plan for the rule that would exceed any minimum requirement put forward in EPA guidelines.