Climate 411

Setting the Record Straight — What this Week’s Supreme Court Order Really Means

By Megan Ceronsky / Published: October 17, 2013

This week the Supreme Court denied numerous legal attacks seeking further judicial review of the Environmental Protection Agency’s (EPA) determination that greenhouse gas emissions are dangerous to human health and welfare, and of other key aspects of EPA’s first generation of climate policies.

The Court agreed to hear arguments on one narrow issue, relevant to one specific Clean Air Act permitting program.

This marked the end of the road for years of sustained industry attacks on the scientific and legal foundation for addressing climate pollution under the Clean Air Act. This was a tremendous victory for science and the rule of law.

But some media reporting suggested just the opposite.

This was the lead of USA Today’s story:

Dealing a potential blow to the Obama administration and environmentalists, the Supreme Court agreed Tuesday to consider limiting the Environmental Protection Agency’s power to regulate greenhouse gases.

(We don’t mean to single out USA Today, which has a well-deserved reputation for excellent environmental reporting. Other media coverage was also confusing. We have more examples at the end of this post.)

Given all that, it seems like it might be helpful to look at the facts of what the Court did and did not do:

Fact One

Industry lawyers threw every attack they could think of at EPA’s science-based finding that greenhouse gas emissions endanger the public health and welfare of current and future generations due to intensifying smog levels, floods, drought, wildfires, and other dangerous climate impacts. The Supreme Court rejected every single industry challenge to the Endangerment Finding.

What this means

This is the end of the road for more than four years of industry regulatory, procedural, and legal attacks on the Endangerment Finding. The End.

But it means more than that. The reason why fossil fuel interests have been so desperate to discredit the Endangerment Finding is because it is the cornerstone for controlling climate pollution under the Clean Air Act — not just for the Clean Car Standards, but also for the forthcoming Carbon Pollution Standards for new and existing power plants and other major sources.

EPA’s Endangerment Finding reflects a vast body of peer-reviewed scientific research by thousands of scientists. Attempts to attack it through litigation have failed. This is a tremendous moment, and an unmistakable sign of the strength of the legal foundation for controlling climate pollution from cars and trucks, power plants, and other major sources under the Clean Air Act.

Fact Two  

The Supreme Court denied every legal challenge seeking review of the Clean Car Standards.

What this means

The landmark Clean Car Standards were strongly supported by U.S. automakers and the United Auto Workers. The Association of Global Automakers and the Alliance of Automobile Manufacturers helped to defend them in court.

These standards, combined with the second generation Clean Car Standards, mean the U.S. will achieve a fleet-wide average of 54.5 mpg by 2025, cut greenhouse gas pollution by six billion tons, avoid 12 billion barrels of oil imports, and save consumers $1.7 trillion at the gas pump — an average of $8,000 per vehicle by 2025.

Fact Three

The Supreme Court did grant review of a narrow question relevant to one specific (and important) Clean Air Act permitting program — did the regulation of greenhouse gases under the clean car program also make greenhouse gases regulated under the program requiring pre-construction review permits for major stationary pollution sources.

What this means

We believe that the Clean Air Act is clear — on its face — that this permitting program applies to all pollutants, as EPA has implemented it.  We will vigorously defend this interpretation in front of the Supreme Court, and we believe that we will succeed.

Moreover, even some petitioners have recognized — as did U.S. Court of Appeals Judge Kavanaugh in his dissent below — that even if the permit program were limited in the way they assert, the requirement to adopt the best pollution controls for greenhouse gases would still apply to sources that are required to obtain permits due to their emissions of other airborne contaminants regulated under national ambient air quality standards.

What this does NOT mean

The question being reviewed by the Supreme Court is important. But it does not have any effect on the programs going forward to address carbon pollution from the two largest sources in our nation — power plants, under the forthcoming Carbon Pollution Standards, and transportation, under the Clean Car Standards.

Bottom Line

The Obama Administration’s vital plan to protect our communities and families from climate change has NOT been called into question by the Supreme Court’s review of one question related to the permitting program for major stationary sources of emissions.

By rejecting every petition challenging the Endangerment Finding and the Clean Car Standards, the Court has yet again indicated that EPA is fulfilling its statutory duty in addressing greenhouse gas emissions under the Clean Air Act.

Building on this firm foundation, EPA has a responsibility to protect Americans’ health and well-being from the threat of climate change. That includes establishing limits on carbon pollution from power plants — the single largest source of climate destabilizing emissions in our nation.

 

(As mentioned above, here are other examples of confusing media coverage from Tuesday morning)

The Supreme Court on Tuesday said it would consider challenges to the Environmental Protection Agency’s permitting requirements for power plants and other facilities that emit large amounts of greenhouse gases, throwing the Obama administration’s regulations into a state of uncertainty. (emphasis is ours)

  • Wall Street Journal (available by subscription only)

The hearings, set for next year, could allow the Court to scale back the Obama Administration’s climate regulations at a time when the chance of passing legislation to limit carbon emissions—long the preferred route of the White House and most environmental groups—seems virtually nil. (emphasis is ours)

At issue is whether the federal Environmental Protection Agency can tighten emission standards for stationary greenhouse gas sources, such as power plants, in what the government says is an effort to stem the effects of global warming. (emphasis is ours)

Also posted in Clean Air Act, News, What Others are Saying / Comments are closed

New paper outlines the legal foundations for strong Carbon Pollution Standards for power plants

By Megan Ceronsky / Published: October 4, 2013

On June 25th, at Georgetown University, President Barack Obama issued a stirring call to action on climate change, saying:

As a president, as a father and as an American, I am here to say we need to act.  I refuse to condemn your generation and future generations to a planet that’s beyond fixing.

In that speech, President Obama announced his Climate Action Plan — a suite of actions that his Administration will take to curb dangerous emissions of heat-trapping pollutants.

In that Climate Action Plan, the President directed the Environmental Protection Agency (EPA) to develop Carbon Pollution Standards for new and existing power plants.

Power plants are the largest source of greenhouse gases in America, and there are currently no federal limits on the amount of climate-destabilizing pollutants that these plants can put into the air.

Unfortunately, but not surprisingly, the attacks on the Carbon Pollution Standards had begun months earlier.

Those attacks included the usual sensational, defeatist, and wholly-unsupported claims designed to delay, deny, and obstruct progress.

Quieter but no less sensational are the attacks launched by the lawyers of obstructionist fossil fuel interests. Hunton & Williams, on behalf of the opaque Utility Air Regulatory Group, is leading the pack.

The legal attacks on the standards for existing power plants effectively boil down to this:

  1. EPA does not have the authority under the Clean Air Act to establish any actual limits on carbon pollution.
  2. If EPA does have that authority, there are no demonstrated measures to reduce carbon pollution from power plants, so any required emission reductions must at most be “minimal.”

We disagree. 

In this white paper, we lay out the legal foundation for EPA’s authority to work with the states to ensure implementation of strong and cost-effective Carbon Pollution Standards for existing power plants.

These standards can support our nation’s transition to a cleaner, safer, smarter power infrastructure and deliver the reductions in carbon pollution we so urgently need.

In the President’s words:

Our progress here will be measured differently, in crises averted, in a planet preserved. But can we imagine a more worthy goal? For while we may not live to see the full realization of our ambition, we will have the satisfaction of knowing that the world we leave to our children will be better off for what we did.

America is united by these hopes and dreams for a better world. Thanks to the ingenuity of our engineers and inventors, and the skill of our workers, the solutions are at hand to build a cleaner power sector and to use energy more efficiently.

The Clean Air Act provides a framework under which EPA and the states can work together to deploy these solutions. We need only work together — in red states, blue states and purple states alike — to meet this challenge.

Also posted in Clean Air Act, Policy, What Others are Saying / Comments are closed

Today’s IPCC Report is A Grim Reminder that We Must Find Solutions to Climate Change

By Ben Schneider / Published: September 27, 2013

People who are fond of conspiracy theories or enjoy rejecting mainstream science might want to stop reading now. What follows is solid, well-researched science based on mountains of peer-reviewed evidence. You have been warned.

Today, the Intergovernmental Panel on Climate Change (IPCC) issued their latest report, and the picture they paint is grim.

Hundreds of scientists from countries all over the world assessed the most recent research. The result – they are more certain than ever that climate change is caused by human activity. The report says it is extremely likely that humans are the main cause for our increase in global temperatures since the mid-twentieth century.

More greenhouse gas emissions will lead to more warming, and the consequences will be felt all over the globe.

And the worst part is IPCC’s predictions may have been conservative.

The international organization, which is one of the world’s foremost authorities on climate change, reports:

  • They are 95 percent certain human activity is responsible for the rise in global temperatures from the latter half of the twentieth century to the present.
  • The chances of an extreme heat wave have more than doubled, and heavy rainfall events are expected to intensify and occur more often.
  • Ocean levels may rise by three feet by the end of this century if emissions are not curbed.

That last prediction may sound like a worst-case scenario, but other experts warn sea-level rise could actually be much worse.

As reported in the Washington Post, the Climate Change Commission predicts the oceans may rise as much as six feet by the year 2100, depending on factors such as glacial ice melting. Sea level rise at that level would be catastrophic, especially when considering its impact on storm surges.

As scary as these predictions are, there are reasons for hope. As communities across the United States and the world increasingly face extreme weather events and other consequences of climate change, we are beginning to see our leaders take more action.

Just last week the Environmental Protection Agency proposed the first nationwide limits on carbon pollution from new power plants. That’s the latest development in President Obama’s Climate Action Plan, a bold mission to take meaningful steps toward a climate change solution.

The release of the IPCC report will no doubt lead climate deniers to spread the usual disinformation. You can find almost anything on the Internet if you Google long enough, but that doesn’t make it true.

Legitimate scientific debate is a good thing — when we stick to facts that are backed by evidence and reviewed by independent experts in the field.  It’s understandable when citizens with busy lives don’t know all the facts on a complex issue like climate change, but there’s no excuse for politicians and talking heads to spread false information. Solving this problem will require a discussion grounded in science, which is why the IPCC report is so valuable.

It’s time to recognize that the billions of tons of carbon pollution we put in our atmosphere every year are causing dangerous changes to our climate — and then work together to find the best solutions.

Also posted in Basic Science of Global Warming, News, Science / Comments are closed

Widespread Support for Proposed New Carbon Pollution Limits on Power Plants

By Mandy Warner / Published: September 23, 2013

On Friday, the Environmental Protection Agency (EPA) released its historic standards to limit carbon pollution from new power plants, helping ensure cleaner power for the future that will help us meet our climate goals.

These proposed standards will serve as the first ever national limit on carbon pollution from the nation’s largest source of emissions.

The reality of climate change has driven broad and diverse constituencies to raise their voices in support of action to reduce carbon pollution. Health groups, power companies, environmental justice groups, Latino groups, businesses, labor, moms, environmental groups, investors, and the NAACP have expressed support for EPA’s carbon pollution standards for new power plants.

Here is a round-up of just a few statements made on last week’s historic announcement:

Addressing carbon pollution will help protect public health. Higher temperatures can enhance the conditions for ozone (smog) formation. Even with the steps that are in place to reduce smog, evidence warns that changes in climate are likely to increase the risk of unhealthy smog levels in the future in large parts of the United States. More smog means more childhood asthma attacks and complications for others with lung disease.

These updated standards to limit carbon pollution from new power plants will help fight climate change; spur our economy to innovate and move to cleaner, renewable sources of energy; and help the American economy become more energy efficient in the years to come. The rules are an important part of President Obama’s comprehensive plan for responding to the threat of climate change that will create and maintain jobs all across the economy.

…Calpine supports the U.S. Environmental Protection Agency’s (EPA’s) efforts to regulate GHG emissions as mandated under the Clean Air Act. The newly proposed GHG New Source Performance Standard for new electric generating plants is an important first step in the EPA’s plans to address climate change.

Climate change could add as much as 10% to portfolio-wide risk in the next two decades, putting trillions of dollars of institutional investors’ assets at risk…These new standards will reinforce what forward-looking investors already know: that climate change poses real financial risks and opportunities and that the future of the electric power sector depends on investing in cleaner technologies and more efficient resources – investments that create jobs and economic benefits.

This is another major step forward to protect future generations from deadly pollution… Forty percent of all energy-related emissions of greenhouse gases in 2012 came from power plants, and most of that came from coal-burning power plants. This pollution has the most harmful effect on low-income communities and communities of color.

Generations of Latino ranchers, farmers and farmworkers have played a fundamental role in our agricultural economy… As farmers and ranchers, we have experienced the ravages of climate change first-hand. Droughts and floods have devastated our crops and land, threatening our livelihoods and our ability to continue to provide healthy fruits and vegetables to households across the U.S… The EPA’s announcement today is a first step in combatting the real consequences of climate change that are impacting our communities and we are ready to be a part of the solution.

While we would have preferred that Congress enact legislation limiting greenhouse gas emissions, today’s action by EPA takes an important first step in establishing standards for new electric power plants that will provide certainty for the industry and the framework for Agency action on existing plants.

The new standards will reinforce what forward-looking companies already know: that climate change poses real financial risks and opportunities and that the future of the electric power sector depends on investing in cleaner technologies and more efficient resources – investments that create jobs and economic benefits.

The far-reaching effects of climate change will be felt throughout our society, in our economy and day-to-day lives.

The health impacts of climate change are apparent as temperatures rise. Higher temperatures mean more deadly ozone pollution.

The costs of extreme weather, from Hurricane Sandy to recent flooding in Colorado, provide a glimpse of the threat to human life and the economic costs associated with these events — which are more likely to occur and be worsened by climate change.

It is clear that the human and economic costs of climate change are growing.

Please send a note to EPA supporting these new historic standards.

Also posted in Clean Air Act, News, Policy, What Others are Saying / Comments are closed

New Carbon Pollution Standards Will Protect Health, Drive Innovation

By Fred Krupp / Published: September 20, 2013

Source: The Guardian

(This post originally appeared on EDF Voices)

The Environmental Protection Agency announced the nation’s first-ever carbon pollution standards for new power plants this morning—a major victory in the fight against climate change. Right now, there are no limits at all on carbon pollution from power plants, the single largest source of this pollution in the United States.

These standards are a necessary, common sense step that will ensure cleaner power generation that helps protect our children from dangerous smog and our communities from extreme weather. They will also drive innovation, so that America can continue to lead the world in the race to develop cleaner, safer power technologies.

Anticipated direct health consequences of climate change include injury and death from extreme weather events and natural disasters, increase in climate-sensitive infectious disease, increases in air pollution-related illness, and more heat related, potentially fatal, illness. Within all of these categories, children have increased vulnerability compared with other groups.

Scientists warn that the buildup of greenhouse gases and the climate changes caused by it will create conditions, including warmer temperatures, which will increase the risk of unhealthful ambient ozone levels. Higher temperatures can enhance the conditions for ozone formation. Even with the steps that are in place to reduce ozone, evidence warns that changes in climate are likely to increase ozone levels in the future in large parts of the United States.

If physicians want evidence of climate change, they may well find it in their own offices. Patients are presenting with illnesses that once happened only in warmer areas. Chronic conditions are becoming aggravated by more frequent and extended heat waves. Allergy and asthma seasons are getting longer. . . . Rising air and water temperatures and rising ocean levels since the late 1960s have increased the severity of weather, including hurricanes and droughts, and the production of ground-level ozone. That means more asthma and respiratory illnesses, more heat stroke and exhaustion, and exacerbation of chronic conditions such as heart disease.

Cost-effective, low-carbon energy solutions are already helping spur the economy, create good jobs and reduce harmful pollution in red and blue states across the country. Industries are recognizing that these smart power solutions are not only good for people and the environment, but also very good for business.

Many major power companies have recognized the need to address carbon. When these standards were initially proposed, the CEO of PSEG, Ralph Izzo, said, “[t]he Agency’s action establishes a logical and modest standard for new electric power plants and provides the industry with much needed regulatory certainty. The EPA provides a framework for the industry to confront this problem in a cost effective manner.” And the CEO of American Electric Power, Nick Akins, said in June that the new Climate Action Plan can be carried out “without a major impact to customers or the economy.”

Wind topped all new power deployed in 2012, with especially strong growth in Kansas, Texas, Iowa, Colorado, Illinois, Minnesota and Oklahoma.  So-called “microgrids”—local generation networks that can run independent of the grid—are unlocking on-site clean power that expands clean energy choices for communities and consumers. And new financing models are driving more efficient use of energy at scale, cutting pollution while saving businesses and families money.

We know we must act now.

The costs of climate inaction are hitting home across the country as extreme weather events batter our communities. From the recent heartbreaking severe floods in Colorado to last year’s devastation from Superstorm Sandy in the Northeast, from crippling drought to terrible wildfires in the West, extreme weather is here and made worse by rising temperatures. The two million Americans who supported the EPA’s initial proposal last year know that doing nothing about climate change is not free. We are paying costs now and will inflict even greater costs on our children and future generations if we do not begin taking aggressive action to reduce carbon emissions.

As Energy Secretary Ernest Moniz said earlier this week, “every ton we emit you can check it off against our children and grandchildren.” The naysayers, as always, are out in force and will do everything they can to derail action on climate. Please join Americans across our nation and lend your voice of support during this crucial time. Together with health and environmental groups, businesses, parents and states – red and blue – we can work together to meet this challenge.

Also posted in Energy, Jobs, Policy / Comments are closed

Setting the Record Straight: EPA Has Ample Authority To Protect us from Carbon Pollution

By Megan Ceronsky / Published: September 20, 2013

(This post originally appeared on EDF Voices)

By Megan Ceronsky, Tomas Carbonell and Peter Heisler.

Source: evanbrennan/flickr

Even though they account for 40 percent of U.S. emissions of harmful carbon pollution, fossil fuel-fired power plants are currently subject to no national limits on the amount of such pollution they emit. Drawing on the same Clean Air Act tools it has previously used to regulate other pollutants, the U.S. Environmental Protection Agency (EPA) is working to put in place common-sense standards for carbon pollution from new and existing power plants.

Recently, a group of state attorneys general[1] issued a White Paper challenging EPA’s authority to establish minimum emission performance standards for carbon pollution from existing power plants under Section 111(d) of the Clean Air Act, and to issue rigorous standards for new power plants that are based on advanced technologies such as carbon capture and storage. This attack on EPA’s well-established authority to administer the Clean Air Act is legally unfounded and a misguided attempt to obstruct urgently-needed and long-delayed limits on carbon pollution from our nation’s largest source.

Background

On June 25, 2013, President Obama called on EPA to exercise well-established authority under Section 111 of the Clean Air Act to establish common-sense limits on carbon pollution from both new and existing power plants. A proposed rule that would implement the nation’s first limits on carbon pollution for new plants under Section 111(b) is due to be released for public comment by September 20th. At the same time, EPA has been reaching out to a diverse group of stakeholders—including state policy makers and energy regulators, industry, and the environmental community—to seek input as they begin to develop proposed emission guidelines for existing power plants under Section 111(d). These emission guidelines will set out the environmental performance criteria that state plans to implement Carbon Pollution Standards for existing power plants must meet to satisfy the Clean Air Act.

EPA’s authority to establish environmental performance criteria for state plans under Section 111(d) is firmly grounded in the statute and no longer open to legal attack.

The argument that Section 111(d) authorizes EPA to issue only procedural requirements for state plans to implement emission standards for existing pollution sources is not new; it revives an industry interpretation of the Act that EPA considered and rejected in 1975, when the Agency first undertook a rulemaking to implement Section 111(d). There, EPA carefully analyzed the language, purpose and legislative history of Section 111(d),[2] and concluded that all of these authorities supported its responsibility to ensure that states plans meet environmental performance targets.  The Agency has consistently adhered to this interpretation for almost 40 years while putting in place Section 111(d) emission guidelines for a number of major sources of harmful air pollution including municipal solid waste landfills, municipal waste combustors, and sulfuric acid plants.[3]  EPA’s authority to issue environmental performance requirements for state plans is no longer open to question or legal attack.[4]

EPA’s longstanding interpretation of Section 111(d) as providing for EPA to establish substantive criteria for state plans is firmly anchored in the statutory language and the structure of Section 111.  The White Paper’s assertion that States select the “best system of emission reduction” misreads the plain language of section 111(a)(1) of the statute, which specifically directs the EPA Administrator to identify the most effective (“best”) system of emission reduction that has been “adequately demonstrated,” considering cost, effects on energy, and other environmental effects.  The Act further provides that the standards of performance for existing sources must “reflect[] the degree of emission limitation achievable” under that best system.[5]

Under Section 111(d), EPA is directed to review state plans to determine whether or not the plans are “satisfactory.”  EPA’s assessment during this review is based on whether the state plans meet the statutory criteria of establishing a “standard for emissions” that “reflects the degree of emission limitation achievable” under the “best system of emission reduction” that “the Administrator determines has been adequately demonstrated.”[6]  The emission guidelines issued by EPA lay out the information States will need to establish plans and standards of performance that will satisfy the statutory criteria, identifying the “best system of emission reduction” and the emission reductions achievable through application of that system. Although states have the flexibility to use other systems, they must achieve equal or greater emission reductions as the “best” system would achieve.  Section 111(d) sets up a carefully balanced framework of cooperative federalism, in which EPA establishes emission guidelines and works with states to achieve emission reductions consistent with those guidelines.  As the Supreme Court recently explained, States issue Section 111(d) standards “in compliance with [EPA] guidelines and subject to federal oversight.”[7]

Section 111(d)’s direction that EPA put in place a process like that in Section 110 for the submittal and review of state plans likewise confirms EPA’s role in setting emission reduction performance requirements.  Under Section 110, States submit state implementation plans to achieve National Ambient Air Quality Standards for specified pollutants.  The safe level of ambient pollution is an expert, science-based determination made by EPA, and the efficacy of state plans in achieving that safe level of air quality is the critical basis for EPA review and approval of state implementation plans.[8]  EPA’s long-standing role under Section 111(d) in establishing the environmental performance criteria for state plans parallels the structure of Section 110, consistent with the statutory cross-reference to that provision.  And under both of these provisions, States are granted considerable flexibility to determine how best to meet those criteria.[9]

EPA has broad flexibility in assessing systems of emission reduction, including cutting-edge technologies that Section 111 was designed to stimulate.

The White Paper asserts that carbon capture and storage (CCS) is not yet widely deployed and that it therefore cannot be the “best system of emission reduction” for new coal-fired power plants.  But as the Senate committee that voted on Section 111 stated, Section 111 was designed to promote “constant improvement in techniques for preventing and controlling emissions from stationary sources,[10] and an emerging technology used as the basis for standards of performance need not “be in actual routine use somewhere.”[11]  In the 1970’s, Section 111 standards for sulfur dioxide emissions from power plants played a key role in driving the development and deployment of flue gas “scrubbers” — which was a novel technology installed at only three power plants at the time those standards were established.[12]  Projects such as Southern Company’s Plant Barry, Plant Daniel, and Kemper County facilities,[13] as well as AEP’s Mountaineer plant,[14]  have shown that CCS is a viable control technology in the power sector.  Indeed, the core technologies involved in CCS have been applied in other industries for decades.

Furthermore, contrary to the assertions of the White Paper, a “best system of emission reduction” for new power plants need not be identical to that for existing power plants – and EPA has flexibility to consider a variety of “systems,” not just technological end-of-pipe solutions, in crafting emission guidelines under section 111(d).   Although EPA was at one time limited to considering “technological” systems when setting standards for new sources, Congress has consistently used broad, flexible language in describing systems of emission reduction for existing sources.  It is consistent with this flexible language for EPA to consider cost-effective systems that reflect the unified nature of the electric grid by treating all fossil fuel fired power plants as an interconnected group, averaging emissions across plants, and recognizing changes in plant utilization that reduce emissions.  These strategies are not only valid “systems of emission reduction” under Section 111, they are also “adequately demonstrated” by the tremendous success that states and companies across the country have already shown in reducing carbon pollution through investing in low-carbon generation, harvesting demand-side energy efficiency, and utilizing lower-emitting fossil fuel-fired units.

Conclusion

We agree with the attorneys general that the States have a vital role in achieving emissions reductions under Section 111.  So does the Environmental Protection Agency.  Indeed, the leadership of both EPA and the states will be essential in cutting carbon pollution from existing fossil fuel power plants, EPA in establishing protective emission reduction requirements for carbon pollution and the States in deploying innovative solutions to secure these emission reductions.  EPA’s fulfillment of its long-overdue statutory responsibilities will establish the foundation for a vibrant partnership between EPA and the states, consistent with the Clean Air Act’s time-tested model of cooperative federalism, to finally place limits on the carbon pollution emitted by power plants and support the transition to cleaner, safer power for our nation, our states and our communities.

[1] The group included the Attorneys General from Alabama, Alaska, Arizona, Florida, Georgia, Kansas, Kentucky, Montana, Michigan, Nebraska, North Dakota, Oklahoma, and Wisconsin and the Commissioner from the Indiana Department of Environmental Management.

[2] 40 Fed. Reg. 55,340, 53,342-44 (Nov. 17, 1975).

[3] See Final Guideline Document Availability, 42 Fed. Reg.  12,022 (Mar. 1, 1977) (phosphate fertilizer plants); Emission Guideline for Sulfuric Acid Mist, 42 Fed. Reg. 55,796 (Oct. 18, 1977) (sulfuric acid plants); Kraft Pulp Mills, Final Guideline Document, Notice of Availability, 44 Fed. Reg. 29,828 (May 22, 1979) (kraft pulp mills); Primary Aluminum Plants, Availability of Final Guideline Document, 45 Fed. Reg. 26,294 (Apr. 17, 1980) (primary aluminum reduction plants); Standards of Performance for New Stationary Sources and Guidelines for Control of Existing Sources: Municipal Solid Waste Landfills, 61 Fed. Reg. 9,905 (Mar. 12, 1996) (municipal solid waste landfills);  Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Municipal Waste Combustors, 56 Fed. Reg. 5523 (Feb. 11, 1991) (Municipal Waste Combustors); 60 Fed. Reg. 65,387 (Dec. 19, 1995) (same); Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Hospital/Medical/Infectious Waste Incinerators, 62 Fed. Reg. 48,348 (Sept. 15, 1997) (Hospital/Medical/Infectious Waste Incinerators); Emission Guidelines for Existing Small Municipal Waste Combustion Units, 65 Fed. Reg. 76,378 (Dec. 6, 2000); Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units, 65 Fed. Reg. 75,338 (Dec. 1, 2000); Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other Solid Waste Incineration Units, 70 Fed. Reg. 74,870 (Dec. 16, 2005); Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Sewage Sludge Incineration Units, 76 Fed. Reg. 15,372 (Mar. 21, 2011)

[4] See 42 U.S.C. § 7607(b) (barring challenges to Clean Air Act rulemakings more than 60 days after promulgation).

[5] Section 111(d) further provides that States are allowed to consider “remaining useful life” when applying performance standards to particular sources, but delegates to EPA the authority for delineating its consideration.

[6] 42 U.S.C. §§ 7411(d), 7411(a)(1).

[7] Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2537 (2011).

[8] 42 U.S.C. § 7410(k)(3).  Section 110 requires, inter alia, State plans to provide for “implementation, maintenance, and enforcement of” National Ambient Air Quality Standards, § 7410(a)(1), the use of emissions monitoring equipment as prescribed by EPA, § 7410(a)(2)(F), and any air quality monitoring requirements prescribed by EPA, § 7410(a)(2)(k).

[9] Section 116 of the Clean Air Act, which prohibits the States from adopting emission standards less stringent than those established under Section 111, further reinforces EPA’s central role in establishing substantive standards under Section 111(d).

[10] S. Rep. No. 91-1196, at 17 (1970).

[11] Id. at 16.  The D.C. Circuit has confirmed the appropriate role of section 111 standards in deploying innovative technologies on multiple occasions.  In Sierra Club v. Costle, 657 F.2d 298, 364 (D.C. Cir. 1981), the court stated: “[W]e believe EPA does have authority to hold the industry to a standard of improved design and operational advances, so long as there is substantial evidence that such improvements are feasible.”  In Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 391 (D.C. Cir. 1973), the court “reject[ed] the suggestion of the cement manufacturers that the [Clean Air] Act’s requirement that emission limitations be ‘adequately demonstrated’ necessarily implies that any cement plant now in existence be able to meet the proposed standards.”   Indeed, the D.C. Circuit has explained that as EPA fulfills its innovation-forcing mandate, the Agency should be forward-looking when determining what systems of emission reduction are available: “Section 111 looks toward what may fairly be projected for the regulated future, rather than the state of the art at present.”[11]  To this end, EPA may make a reasonable “projection based on existing technology”[11] in identifying the “best system of emission reduction.”

[12] See Larry Parker & James E. McCarthy, Cong. Research Serv., R40585, Climate Change: Potential Regulation of Stationary Greenhouse Gas Sources Under the Clean Air Act 17-19 (2009) (noting Section 111 has been used to authorize control regimes that extended beyond the merely commercially available to those technologies that have only been demonstrated, and thus are considered by many to have been “technology-forcing.”).

[13] Southern Company Q2 Earnings Call (July 27, 2011), transcript available athttp://www.morningstar.com/earnings/PrintTranscript.aspx?id=28594632.

[14] American Electric Power Q2 2011 Earnings Call (July 29, 2011), transcript available athttp://www.morningstar.com/earnings/PrintTranscript.aspx?id=28688913 (AEP’s former CEO stated in this call that “carbon capture and storage is in fact a viable technology for the United States and quite honestly for the rest of the world going forward.”).

Also posted in Clean Air Act, Policy / Comments are closed