Selected category: Clean Power Plan

Why “Just Say No” is Just Plain Wrong: the Sound Legal Basis for the Clean Power Plan

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Kentucky power plant. Photo by Cindy Cornett Seigle/Flickr

The U.S. Environmental Protection Agency (EPA) will soon finalize the Clean Power Plan — a suite of historic Clean Air Act standards that will establish the first nationwide limits on carbon pollution from America’s fossil fuel-fired power plants. Rigorous carbon pollution standards for the nation’s power sector will yield immense benefits for the health of our families and communities, for the American economy, and for a safer climate for our children.

Yet in the months leading up to the release of the Clean Power Plan clean air standards, coal companies and other entities that oppose reasonable limits on carbon pollution have lobbed a series of flawed and failed lawsuits directed at stopping EPA from finishing its work. Now, some power companies and their allies have concocted new – and equally misguided – attacks against the Clean Power Plan.

They’ve been suggesting that the U.S. Supreme Court’s recent decision in the Mercury and Air Toxics Standards case, which held that EPA must take costs into account when making a threshold decision whether to proceed with emissions limits on toxic pollution was a blow against the Clean Power Plan. They’ve also been arguing that states should “Just Say No” to developing plans for implementing the Clean Power Plan’s vital protections to limit carbon pollution for climate and public health.

As we explain below, these critics are flat wrong – on the meaning of the Supreme Court’s decision, on the decision’s implications for the Clean Power Plan, and on the validity of “just saying no.”

Climate and Public Health Benefits of the Clean Power Plan

Before turning to the Supreme Court’s decision, let’s make one thing clear — the “Just Say No” camp is urging states to condemn our families and communities to a future of unlimited carbon pollution and compromised public health. They’re also urging us to forego a tremendous economic opportunity associated with the race to deploy more clean energy solutions, drive down pollution, and increase jobs.

The Clean Power Plan is expected to bring historic health and environmental benefits, both in the near term and for future generations. As proposed, the Clean Power Plan would significantly reduce carbon pollution from the nation’s largest source – existing fossil fuel power plants that account for nearly 40 percent of U.S. carbon dioxide emissions. Reductions of other harmful pollutants will be just as profound. Based on the proposed rule, EPA estimates that by 2030, when the Clean Power Plan is fully in effect, power sector emissions of sulfur dioxide, nitrogen oxides, and particular matter will be reduced by almost 30 percent compared to a business-as-usual scenario. Significant reductions would begin to take place many years earlier.

That means thousands of avoided deaths, heart attacks, and childhood asthma attacks each year — all by the time a child born today starts kindergarten. EPA estimates that the climate and public health benefits of the proposed Clean Power Plan would have an economic value of up to $93 billion per year by 2030 – or as much as eleven dollars for every dollar spent on compliance.

The Supreme Court Mercury Decision and the Clean Power Plan

Yet some opponents of the Clean Power Plan, including Senate Majority Leader Mitch McConnell (R-KY) and large polluters, are urging states to hold off on implementing the Clean Power Plan. They claim — falsely — that the Supreme Court invalidated the Mercury and Air Toxics Standards when it decided Michigan v. EPA, so it was a waste of money for power plants to have complied with the Mercury standards. They say the same thing might happen with the Clean Power Plan.

That’s just plain wrong.

The Supreme Court did not invalidate the Mercury and Air Toxics Standards. The Court only held that EPA should have taken into account the costs of the standards when the Agency made its initial legal determination that it is “appropriate and necessary” to regulate mercury and other air toxics from power plants. As examined below, EPA considered costs in establishing the resulting emissions standards. Further, the Mercury and Air Toxics Standards remain in effect after the Court’s decision, and power plants are still required to comply. (The case now goes back to a lower court for further consideration).

In the coming weeks and months, EPA will respond to Michigan v. EPA. There is every reason to believe EPA can quickly amend its “appropriate and necessary” finding to address the Supreme Court’s decision, without affecting the substance of the Mercury and Air Toxics Standards. This is because EPA has already conducted an extensive review of both the costs and benefits of the standards, and that review contains overwhelming evidence that the benefits of the Mercury and Air Toxics Standards are vastly disproportionate to the costs.

Controlling air toxics for power plants, for example, will have the important benefit of reducing human exposure to harmful particulate matter – helping prevent 11,000 premature deaths, 4,700 heart attacks, and 130,000 asthma attacks each year. These “co-benefits” have an estimated value of up to $90 billion per year, or up to nine dollars for every dollar projected to be spent on compliance. That figure does not even take into account the critical benefits associated with reduced exposure to the neurotoxic and carcinogenic pollutants regulated under the Mercury and Air Toxics Standards, all of which are emitted by the power sector in huge quantities, and all of which will be dramatically reduced as a result of the standards. There is no question that the Mercury and Air Toxics Standards are “appropriate and necessary” even when costs are considered.

Moreover, the courts will almost certainly keep the Mercury and Air Toxics Standards in place during the interim period while EPA responds to the Supreme Court’s decision. This is a common course of action when the courts find that EPA needs to go back and address legal or technical issues in a Clean Air Act regulation – especially in the situation we face with the Mercury and Air Toxics Standards, where the issues are straightforward to resolve and there are significant public health protections at stake.

The Clean Power Plan — Different Rule, Different Issues

Polluters and their allies are even more off-base when it comes to the impacts of the latest Supreme Court decision on the Clean Power Plan.

The Mercury and Air Toxics Standards case was about a narrow interpretive issue in section 112 of the Clean Air Act — whether EPA had to consider costs in its “appropriate and necessary” finding. Unlike the Mercury and Air Toxics Standards, the Clean Power Plan is authorized by section 111 of the Clean Air Act. Section 111 contains no reference to an “appropriate and necessary” finding. So the Supreme Court’s interpretation of section 112 doesn’t have any direct relevance to section 111.

Under section 111, EPA does have to make a threshold finding that a source category “contributes significantly to air pollution which may reasonably be anticipated to endanger public health or welfare.” EPA already made this finding when it first issued section 111 standards for power plants back in the 1970’s. In 2009, EPA made a further finding that carbon dioxide and other greenhouse gases “endanger public health and welfare” – a finding that the courts subsequently upheld against numerous industry challenges.

It’s also clear that EPA has considered costs extensively throughout the rulemaking process for the Clean Power Plan, as section 111 requires. As noted above, EPA found that the total benefits of the proposed Clean Power Plan exceed compliance costs by a wide margin. This remains true even when considering the climate and public health benefits separately — EPA’s central estimate of the climate benefits alone is $31 billion per year by 2030, or over three –and-a-half-times the cost of compliance. The public health benefits in that same year are valued at an additional $27 to 62 billion.

Cost considerations are woven into the structure of the proposed Clean Power Plan, which maximizes flexibility to enable compliance using the most cost-effective methods available. Indeed, EPA’s approach is vastly less expensive than the “end of the pipe” solutions some of the Clean Power Plan’s opponents claim are the better approach under the law.

Legal Experts Confirm the Strong Legal Basis for the Clean Power Plan

The cynical premise of the “Just Say No” campaign also ignores the chorus of influential legal experts who have affirmed the strong legal basis for the Clean Power Plan. Leading law enforcement officials, former EPA officials, and prominent legal scholars have concluded that the Clean Power Plan is firmly within EPA’s long-standing authority under the Clean Air Act.

A few illustrative statements include:

The Text, Structure, and History of the Clean Air Act Confirm EPA’s Authority to Regulate Carbon Dioxide Emissions from Power Plants Under Section 111(d). —Attorneys General of the States of New York, California, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia, in brief filed in Murray Energy Corp. v. Environmental Protection Agency, No. 14-1112 (D.C. Cir. Dec. 23, 2014)

The EPA has authority under the 1990 Clean Air Act, an authority affirmed by the U.S. Supreme Court, to set these public health protections against carbon pollution. — Carol M. Browner (EPA Administrator under the Clinton Administration) & Alex Laskey, With New Power Plant Rules, Energy Efficiency Checks All the Boxes

Critics of the [Clean Power Plan] say that President Obama is making an end run around Congress, stretching the law to achieve by executive action what he could not accomplish through the legislative branch. This is flat wrong. More than four decades ago, Congress expressed its clear desire to regulate pollution from power plants, in the form of the Clean Air Act. I know, because I worked on the legislation, including the key part of the act—Section 111—that the Obama administration is using to justify its move. — Leon Billings, The Obscure 1970 Compromise That Made Obama’s Climate Rules Possible

Limiting Greenhouse Gas emissions from existing power plants is the next logical step after the Supreme Court and other courts have upheld EPA’s authority and obligation to address this issue. A system-wide approach provides needed flexibility and reduces costs, as well as encouraging investment in lower-emitting generation. EPA has wisely left the states a lot of discretion rather than mandating specific measures as some had wanted. – E. Donald Elliott, EPA General Counsel under President George H.W. Bush, Obama’s Section 111d Plan Has Support From George H.W. Bush’s EPA General Counsel, Utility Executives

EPA’s approach is neither unprecedented nor unlimited. Since 1970, the [Clean Air Act] has called on states to make policy choices and use their governmental powers in the manner that this rule might require. Indeed, many of the policy choices needed to comply with EPA’s proposal would stem from the special characteristics of the electricity market and not from any new EPA initiative. — William F. Pedersen, Senior Counsel, Perkins Coie, Does EPA’s §111(d) Proposal Rely on an Unprecedented and Legally Forbidden Approach to Emission Reduction?, Environmental Law Reporter (April 2015)

There is just case law building on case law that says, [the Clean Power Plan] is perfectly constitutional. — Prof. Jody Freeman, Harvard Law School, Harvard Law's Lazarus and Freeman discuss federal court Power Plan hearing, Tribe arguments,E&ENews PM (April 20, 2015)

Clean Air Act regulations of existing power plants implemented by presidents of both parties over the past quarter of a century have achieved vitally important protections for public health and the environment through regulatory tools carefully designed to minimize costs. By following in the footsteps of earlier rules, the Clean Power Plan could be similarly transformative. The claim that it is unprecedented and unconstitutional is wrong on the facts and wrong on the law. – Ricky Revesz, Dean Emeritus and Lawrence King Professor of Law, NYU School of Law, Obama’s professor on Clean Power Plan – Wrong on the facts and law

EPA’s Strong Record of Success in Defending Clean Air Act Rules

Proponents of the “Just Say No” campaign also hope that the public will overlook EPA’s strong track record of success in defending Clean Air Act rules in the nation’s federal courts.  Indeed, almost all of the major Clean Air Act rules that have so successfully protected human health and the environment in recent years have undergone intense legal challenges – and most of these challenges have failed.

Consider these recent examples:

  • EPA v. EME Homer City Generation (U.S. Supreme Court, 2014) — In a major victory for EPA, the Supreme Court reversed a D.C. Circuit decision invalidating the Cross-State Air Pollution Rule.  
  • Utility Air Regulatory Group v. EPA (U.S. Supreme Court, 2014) — The Supreme Court upheld EPA’s interpretation of the Clean Air Act requiring that new and modified industrial facilities obtain permits limiting their emissions of greenhouse gases to reflect “best available control technology.” The Court did rule against EPA on the question of whether the “best available control technology” requirement applies to smaller facilities. However, EPA itself had concluded those requirements would pose serious practical problems and yield relatively small pollution control benefits.
  • Coalition for Responsible Regulation v. EPA (D.C. Circuit, 2012) — The D.C. Circuit Court of Appeals upheld EPA’s science-based finding that climate pollution endangers public health and welfare, and EPA’s first generation of greenhouse gas emission standards for passenger vehicles. The Supreme Court declined to review either of these critical holdings, laying the groundwork for subsequent rules reducing greenhouse gas emissions from passenger vehicles and medium and heavy duty trucks.
  • Delta Construction Co. v. EPA (D.C. Circuit, 2015) – The D.C. Circuit dismissed, on procedural grounds, multiple legal challenges to EPA’s first greenhouse gas standards for medium and heavy duty vehicles.
  • National Association of Manufacturers v. EPA (U.S. Court of Appeals for the D.C. Circuit, 2014) — EPA fended off challenges to the National Ambient Air Quality Standards for particulate matter (better known as soot).

The health and environmental benefits of the Clean Power Plan will be invaluable. As EPA prepares for the inevitable legal attacks, it has a strong legal foundation and a track record of litigation success. Nothing about the Mercury and Air Toxics Standards decision changed that.

Also posted in Clean Air Act, Climate Change Legislation, Health, News, Policy| Leave a comment

Oklahoma Court Rejects Yet Another Flawed Challenge to the Proposed Clean Power Plan

rp_scales_of_justice.pngThe Clean Power Plan has now won a second round in court – before the U.S. Environmental Protection Agency (EPA) has finished writing it.

The federal district court for the Northern District of Oklahoma rejected another premature challenge on Friday to the proposed standards for carbon pollution from existing fossil fuel power plants.

The first – a challenge brought by Murray Energy Corporation and several states, including Oklahoma – was dismissed by the U.S. Court of Appeals for the D.C. Circuit just last month. In that decision, the D.C. Circuit court found petitioners’ attack on the Clean Power Plan was premature — relying on the plain text of the Clean Air Act, bedrock principles of administrative law, and (as the petitioners themselves acknowledged) the unbroken practice in the D.C. Circuit allowing challenges only to final agency actions.

This finality requirement is critically important to the integrity of the administrative process, ensuring the agency has an opportunity to consider and incorporate public input and that a reviewing court evaluates the agency’s final, carefully-determined course of action.

In last month’s decision, the D.C. Circuit noted that petitioners were “champing at the bit” to challenge the Clean Power Plan. True to form, the state of Oklahoma filed another challenge – pressing substantially similar claims to those already rejected by the D.C. Circuit, but this time seeking judicial review in Oklahoma federal district court.

If the challenges in the D.C. Circuit represented an attempted end run around the judicial review provisions of the Clean Air Act, then here the plaintiffs tried a double end run — adding to their flawed premature challenge by seeking judicial review in the wrong court.

The Clean Air Act provides that a challenge to any “standard of performance or requirement under section [111]” — which will include EPA’s Clean Power Plan, when finalized — must be filed in the D.C. Circuit. The Clean Air Act vests the D.C. Circuit with this authority to ensure uniform and consistent review of actions that apply nationally.

The Oklahoma federal district court made short work of the suit.

On Friday, the court firmly rejected the challenges – dismissing them on the basis of the plaintiffs’ brief alone, without even waiting for EPA’s response.

The Oklahoma federal district court decision both reaffirmed the courts’ authority to review only final agency actions, and identified the D.C. Circuit as the proper venue for challenging the Clean Power Plan, when it is finalized.

In the decision, written by Oklahoma federal district court Judge Claire Eagen, the court said:

The D.C. Circuit has already determined that the proposed emission standards are not a final agency action, and that court has denied a petition to review the proposed emission standards before they become a final rule. (Page 9)

The decision also says:

Even if the Court found that it would not be premature to exercise jurisdiction over this case, plaintiffs have failed to show that jurisdictional review provision of the CAA would permit this Court to exercise jurisdiction over the case . . . . The ultimate issue of whether the EPA has the authority to promulgate the disputed emission standards pursuant to § 7411(d) must be decided by the court with exclusive jurisdiction over these matters, and that court is the D.C. Circuit. (Page 9 – Emphasis Added)

Taken together, these decisions should give pause to litigants contemplating procedurally-flawed legal challenges — but unfortunately, Oklahoma is continuing to press these misguided claims in an appeal to the U.S. Court of Appeals for the Tenth Circuit. And these are just the latest in a series of legally-unfoundedattacks on these critical standards.

The health and environmental benefits of the Clean Power Plan could be profound. As EPA prepares for the inevitable legal challenges to come, it has a strong track record of defending the Clean Power Plan and other important clean air safeguards against legal attacks. That's good news for the families and communities that are afflicted by carbon pollution from fossil fuel-fired power plants — the nation's single largest source of this climate-destabilizing pollution.

Also posted in EPA litgation, News, Policy| Comments are closed

Urgency and Opportunity for Latino Leadership on Climate

Las Vegas -- Wikimedia Commons

Las Vegas — Wikimedia Commons

When I landed in Las Vegas last week, the weather was a broiling 108 degrees. Ouch.

I braved the Las Vegas heat for one of the most inspiring convenings of Latino leaders in the country, the Annual Conference of the National Association of Latino Elected Officials (NALEO). We had a chance to hear from established and rising Latino leaders, as well as from Presidential candidates, about the challenges facing Latino communities and the many paths forward for creating a brighter future.

What we did not hear about was a vision for places like Las Vegas, where summer temperatures are bound to get hotter and water will become even more scarce in the face of climate change. In fact, there was no formal conversation about what climate change means for the U.S., and specifically for Latinos.

Here’s the short version of the missing conversation on climate: climate change presents challenges to everyone but it is having, and will continue to have, a disproportionate impact on Latinos in the United States.

To illustrate, let’s look at the three states that house more than half the Latinos in the US:

  • California, and the state’s majority Latino population, is facing its fourth year in historic drought that’s been exacerbated by climate change.
  • This summer, Texas experienced unprecedented flooding, nearly canceling out the state’s prior state of drought, in a demonstration of the kind of extreme weather linked to climate change.
  • Florida’s real estate and freshwater is already threatened by initial increases in sea-level rise, which are also eroding the state’s beaches.

There are more than 28 million Latinos facing climate threats in these three states alone. That does not count the millions of other Latinos nationwide who will face extreme heat and longer wildfire seasons in the Southwest this summer. It does not account for all 49 percent of Latinos nationally who live in coastal communities and will face more frequent and intense hurricanes and flooding. It also does not account for the full 14 percent of Latino kids diagnosed with asthma, who will face greater challenges to managing this condition due to more days with unhealthy levels of smog.

That was the bad news. It points to the fact that our leaders should not ignore the impacts of climate change on the Latino community. As climate impacts the air we breathe, threatens water we use for drinking, swimming, farming, and fishing, and even endangers our health, leaders at all levels need to take a proactive stance to protect our communities by addressing climate change.

Here’s the good news — the support is already there to act on climate. National polling has shown that 63 percent of Latinos think the federal government should act broadly to address global warming, while 8 in 10 Latinos want the President to curb the carbon pollution that causes climate change.

There are also some great opportunities hidden among the challenges. For example, today’s clean energy economy is creating more jobs than the fossil fuel economy. Jobs in the clean energy economy also offer higher wages to a wide range of workers, relative to the broader economy.

Which brings me back to Vegas. While there was no formal climate change discussion on the program, Latino environmental leaders from around the country were sparking conversations in the halls about conservation, climate change, and la comunidad. Advocates from New Mexico's Hispanics Enjoying Camping, Hunting, and Outdoors talked with conference guests about the importance of protecting our public lands. Colorado's Nuestro Rio shared their work protecting the Colorado River and our bond to this precious resource.

EDF also played a role, teaming up with GreenLatinos, Green 2.0, and Nuestro Rio to host a reception and highlight the importance of addressing climate change at a national level. Nearly everyone we spoke with about our work was interested in hearing about solutions and how to do more.

As we participated in conference events last week, Pope Francis reminded us that we “have the duty to protect the earth and ensure its fruitfulness for coming generations.” Latino communities, and our leaders, are no exception. We have a duty to address climate change — protecting our families, our children, and our climate is something we cannot afford to gamble on.

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Just Two Actions May Stop the Planet's Runaway Warming

I was 15 and I was trying to impress a boyfriend with my rollerblading skills — from the top of a steep hill. Before I knew it, I was flying uncontrollably toward traffic. I knew I needed to both slow down and change course . . . or things wouldn't end well.

I did, and I survived, but I've recently thought about that day and those actions as I have considered the urgency needed for the planet to slow down and change course as the climate warms. With two major actions, we can slow the rate of global warming while also preventing "runaway" warming: nations must reduce emissions of both short-lived and long-lived pollutants.

All emissions are not equal

The way people talk and think about the long and short-term impacts of various greenhouse gasses is critical for making smart policy decisions that can effectively slow how fast the climate changes while limiting warming in the future.

While the maximum extent of warming relies on carbon dioxide (CO2) emissions because they last for centuries in the atmosphere, the rate of climate change is controlled by short-lived climate pollutants, such as methane.

Like carbon dioxide, methane is a gas that warms the Earth by trapping heat. Pound for pound, methane is more than 100 times more powerful than CO2 because methane is much more efficient at absorbing heat. But that number changes depending on how far out you look.

Comparing emissions of gases with vastly different radiative impacts and atmospheric lifetimes requires a metric that depends on what timeframe you care about, such as the next decade or next century. One way scientists deal with the temporal differences is by measuring the global warming potential of gases over two time periods: 20 years and 100 years.

Methane is 84 times more effective at trapping heat than CO2 over the first 20 years after they are both emitted, and 28 times more effective over 100 years, because most of the methane breaks down in the first 50 years after it is released due to oxidizing chemical reactions. When discussing what actions to take to reduce methane we must think about methane's potency in both timeframes.

Our best chance of combating climate change

Since the Industrial Revolution, methane in the atmosphere has increased by a whopping 150 percent. While in the same period, CO2 levels have gone up 40 percent. Around one quarter of today's human-caused warming is attributable to emissions of methane, while human-caused CO2 emissions account for around half.

The administration of U.S. President Barack Obama is currently undertaking efforts to reduce emissions of some of the most damaging greenhouse gas emissions  responsible for climate change: methane pollution from oil and gas operations and carbon dioxide from coal-fired power plants. This strategy has prompted questions about which climate pollutant should take priority. But the discussion of whether to cut methane emissions first and carbon dioxide later — or vice versa — is not helpful or necessary. We need a two-pronged strategy to stay safe.

Understanding the urgent need to reduce all types of climate pollution, the Obama administration is expected to move forward with rules to mitigate both methane and carbon dioxide in the next few months. This summer the U.S. Environmental Protection Agency (EPA) is expected to propose the first ever direct regulation of methane emissions from new and modified sources in the oil and gas industry, and finalize its Clean Power Plan to reduce carbon dioxide from coal-fired power plants.

Another agency, the U.S. Bureau of Land Management, is also expected to soon propose important rules to reduce wasteful venting, flaring and leaking of methane associated with the production of oil and natural gas on public lands.

Nations cannot solve the climate crisis and prevent serious impacts without simultaneously reducing both short-lived and long-lived climate pollutants. Reducing CO2 will limit the overall warming the planet will experience generations from now, which will have profound impacts on limiting sea level rise and other dangerous consequences.

Reducing warming caused by methane during our lifetime will also reduce the likelihood of extreme weather events and species extinctions — and, a slower rate also provides more time for societies and ecosystems to adapt to changes.

This post originally appeared on LiveScience.

Also posted in Energy, Greenhouse Gas Emissions, Science| Comments are closed

Opportunities for Streamlined, Cost-Effective, and Legally Durable Implementation of the Clean Power Plan

Stroller Brigade 012This post was co-written by EDF's Peter Zalzal

The U.S. is poised to take an historic step this summer.

The U.S. Environmental Protection Agency (EPA) will finalize the Clean Power Plan, which will create our nation’s first-ever standards for carbon pollution from existing fossil fuel-fired power plants. These power plants account for almost 40 percent of U.S. carbon pollution, so these new standards are critical to mitigating climate change and protecting public health.

The proposed Clean Power Plan builds on a tradition of partnering with states to reduce air pollution and to protect public health and the environment. For each state, EPA has proposed an individualized carbon pollution goal that reflects the composition of the state’s power sector and its opportunities for cost-effective reductions. Each state will then have the opportunity to design a plan for meeting its goal that is tailored to its unique circumstances and priorities.

In designing these plans, states will have a critical opportunity to ensure that carbon pollution reductions are achieved in a way that delivers important public health protections for all Americans, especially environmental justice communities that bear a disproportionate share of ambient air pollution burdens.

States will also be able to leverage a full suite of cost-effective measures for carbon pollution reduction, including a variety of approaches highlighted in a recent report by the National Association of Clean Air Agencies, as well as energy efficiency measures that directly benefit consumers – including low-income households — by lowering their energy bills.

Our new EDF white paper examines how states can design plans that meet federal requirements using well-established regulatory emissions management tools and, at the same time, preserve the compliance flexibility needed to secure cost-effective pollution reduction.

A state would start by designing a plan that places responsibility for meeting the carbon pollution goals directly on entities that own or operate fossil-fuel fired power plants, as many states have already done in the context of other air pollutants. These source-specific standards could be designed to meet either rate-based state goals (requiring that facilities meet a particular level of carbon intensity per unit of generating output), or mass-based state goals (requiring that facilities obtain emission allowances for every ton of carbon dioxide they emit).

These standards would be incorporated into facility-level operating permits. They could also be designed to allow for cost-effective compliance flexibilities — including averaging and trading of emissions among facilities, and recognition of emission reductions from energy efficiency, use of renewable energy, or other measures that reduce pollution from regulated facilities.

Such an approach would allow states and power companies to decide which compliance strategies are most appropriate for regulated entities, and would complement other state policies supporting energy efficiency and renewable energy without requiring that those policies be incorporated into the state plan.

To maximize flexibility, our white paper identifies some common elements that would make state plans compatible with each other, enabling interstate trading of compliance instruments (for states that prefer to do so) without the need for complex negotiations about program design.

Our white paper also examines existing legal frameworks in several states and identifies ample legal authorities that could be used to implement the approach we describe.

For states that don’t submit their own plans to achieve the required emissions reductions, EPA will provide a federal plan for achieving the state’s carbon pollution goal. Having already designed similar plans for other air pollutants, EPA has the experience and the legal authority to design federal plans that promote flexible and cost-effective compliance.

Among the options for a federal plan, our paper describes the advantages of one that provides for a mass-based state emissions goal that is achieved through an emissions trading program – a time-tested approach that has been used successfully by both states and EPA across a variety of administrations to reduce other pollutants from the power sector.

A federal plan could also incorporate the same common elements we describe for state plans, enabling entities covered by the federal plan to more easily trade compliance instruments with entities in other states.

For each federal plan, EPA could work with the affected state to customize it by incorporating the state’s preferences on issues such as the allocation of emission allowances. Like our approach to state plans, this suggested approach for the federal plan would complement any current and future state policies to encourage clean energy, while preserving the ability of the states to change those policies over time.

Our white paper shows that the proposed Clean Power Plan is, at its core, a traditional emissions management program that can be implemented through well-established regulatory approaches mirroring other successful Clean Air Act programs.

Check out our white paper for more information on how both state and federal plans could achieve carbon pollution goals while providing maximum flexibility for compliance, all within existing legal frameworks.

Photo source: Moms Clean Air Force

Also posted in Greenhouse Gas Emissions| Comments are closed

Déjà vu: Pushback to U.S. Clean Power Plan Reminiscent of 2011 Mercury Rule

By Susan Tierney,  Managing Principal, Analysis Group, Inc.

This post originally appeared on World Resources Institute's Insights blog.

Did you notice the massive blackout on April 16th, 2015?Reversed-GoldBackground

Actually, I didn’t either. That’s because the electric system didn’t falter. The fact that April 16th came and went without a reliability glitch was both nothing unusual and also a really big deal. Because history has a habit of repeating itself, it’s worth understanding why April 16th was a remarkable (and remarkably dull) milestone in electric-industry history.

The Origins of the Mercury and Air Toxics Standard (MATS)

Back in 2010, just under a third of all U.S. power-plant capacity burned coal to produce electricity. Many of those plants were emitting unhealthy levels of toxic air pollution, which forthcoming regulations from the Environmental Protection Agency (EPA) would limit. Critics of EPA’s rule doubted that manufacturers and installers could get enough pollution-control equipment into the market and on to power plants fast enough to meet the deadline under the new Mercury and Air Toxics Standard (MATS) – and that taking so much of the nation’s generating capacity off line all at once would inevitably lead to an unreliable electric system.

Before the EPA finalized its MATS rule at the end of 2011, countless groups published estimates of how many coal plants would retire due to the EPA regulations. The North American Electric Reliability Corporation (NERC) warned that “with [the mercury rules] as the primary driver, the industry faces considerable operational challenges to complete, coordinate and schedule the necessary environmental retrofits.” Others, including opponents of the rule, argued that, in the name of reliability, the rule would need to be delayed.

In December 2011, EPA issued the final MATS rule, which gave owners of affected power plants until April 16, 2015, to either bring their plants into compliance with the new requirements or cease their operations.

That date passed two weeks ago without incident. The lights didn’t dim.

Why not? First, the EPA stood by its commitment (made in November 2011 by then-Assistant EPA Administrator Gina McCarthy in testimony to the Federal Energy Regulatory Commission, the agency with responsibility for electric system reliability) that “In the 40-year history of the Clean Air Act, EPA rules have never caused the lights to go out, and the lights will not go out in the future as a result of EPA rules.”

Part of the reason for that is that the EPA is nowhere near as rigid or anti-business as many observers like to portray it. The final EPA rule gave power-plant owners the ability to request an additional year of time to comply, and allowed yet another year in unusual cases where continued operation of a plant would be needed for reliability. According to the National Association of Clean Air Agencies, as of March 2015, owners of 38 percent of the 460 coal-fired power plants affected by the MATS rule had requested additional time to comply and, of those, the EPA granted an extension to 95 percent.

Kentucky power plant. Photo by Cindy Cornett Seigle/Flickr

Second, the electric industry is already transitioning to rely less on coal, even without the MATS rule. Between 2011 and the end of 2014, 21.5 gigawatts (GW) of coal-fired power plants retired. The fact that these retirements occurred before the MATS deadline indicates that something other than EPA's regulations is driving the least-efficient and oldest coal plants into retirement.

Coal's ardent supporters may prefer to point the finger at EPA, but the truth is that market conditions are responsible: relatively flat electricity demand, increased supply from power plants using other domestic energy sources (natural gas, wind and solar), and price competition between natural gas and coal. Another 14.6 GW of power plants have retired or will retire in 2015. This total amount of coal-plant retirements (36.1 GW) falls at the mid-point of estimates made during the 2010-2011 period.

Third, the electric industry is dynamic. The market has responded to signals that additional electric resources are needed to replace old ones. Many projects have come forward: new power plants, upgraded transmission facilities, rooftop solar panels, energy-efficiency measures and energy-management systems. These varied responses are the norm, collectively maintaining reliability and modernizing the power system along the way.

That’s why there were no blackouts on April 16th, despite all the dire warnings.

History Repeats Itself

The reliability theme is re-emerging once again, as the states and the electric industry face the prospect of EPA finalizing its “Clean Power Plan” to control carbon pollution from the nation’s power plants. In anticipation of the final rules coming out this summer and of power plant owners having to comply with them by 2020, many observers are saying that the electric system's reliability will be jeopardized if the EPA goes forward as planned. The latest warning came last month with a new assessment published by NERC, calling for more time to allow the industry and the states to respond to the forthcoming carbon-pollution rules.

Such warnings are common whenever there is major change in the industry, and they're not without value: They play an important role in focusing the attention of the industry on taking the steps necessary to ensure reliable electric service.

But warnings lose their value when they are read as more than what they are. Notably, the reliability concerns currently being raised by some observers about EPA’s Clean Power Plan presume inflexible implementation, are based on worst-case scenarios, and assume that policy makers, regulators and market participants will stand on the sidelines until it is too late to act.

There is no historical basis for these assumptions. Reliability issues will be worked out by the dynamic interplay of actions by regulators, entities responsible for reliability, and market participants, all proceeding in parallel to find solutions.

EPA’s proposed carbon-pollution rule provides states and power plant owners with the means to prevent reliability problems by giving them a wide range of compliance options and plenty of operational discretion (including various market-based approaches, other means to allow emissions trading among power plants, and flexibility on deadlines to meet interim targets). And EPA Administrator McCarthy has stated repeatedly that her agency will write a final rule that reflects the importance of a reliable grid and provides the appropriate flexibility.

One of the best ways to assure electric reliability will be for states to actively avail themselves of the Clean Power Plan’s flexibility, rather than “just say no.” States that do not take advantage of this flexibility and then suggest that EPA’s regulations led to unreliable and uneconomic outcomes may be courting a self-fulfilling prophecy. The more states sit in the driver seat and figure out how to arrive at the emissions-reduction destination in a manner consistent with their goals and preferences, the more likely it is that they’ll accomplish them.

Also posted in Energy, Greenhouse Gas Emissions, Health| Comments are closed
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