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Challenges Ahead for Clean Power Plan, Another EPA Rule

Less than two weeks after President Obama announced the U.S. Environmental Protection Agency’s (EPA) final Clean Power Plan rule, aimed at cutting carbon emissions from existing power plants 32 percent from 2005 levels by 2030, EPA Administrator Gina McCarthy has encouraged states to comply with the plan through emissions trading opportunities—emphasized far more in the final rule than the draft proposal.

It appears that some states may be examining whether they have trade-ready elements in common with other states. If so, they will be able to swap emissions credits with those states in order to comply with the rule.

“There’s been a lot of discussion, particularly in the West, where states are more loosely connected across the electricity grid, about an arrangement where states could adopt some common elements, and thereby allow the compliance entities in that state to trade among states that might not have submitted a joint plan but still have common elements in their plans,” said Colin McConnaha, a greenhouse gas specialist with the Oregon Department of Environmental Quality.

Despite the final rule’s flexibility, legal challenges are expected (subscription). Bill Bumpers, a partner at a law firm representing power companies, estimates 22–26 states are considering such challenges, a decision he called “more political than practical.”

The focus of many of these legal challenges, in my opinion, may very well be section 111(d) of the Clean Air Act. I spoke with MetroNews Talkline on this issue Wednesday, noting:

“The way the Clean Air Act is set up is that the traditional pollutants like ozone and particulates are regulated under one provision, what they call the hazardous air pollutants like mercury are regulated in a second provision and then there is this third provision, 111 that says if it is not covered under one of the first two then you regulate under 111(d) … Section 111 (d) has been rarely used over history because there hasn’t been a pollutant like CO2 in the mix. So that gives the EPA a lot of flexibility in how it executes because there are not years of precedent, but it also gives them some uncertainty in how the courts are going to interpret it.”

That flexibility may not be so clear for another EPA rule that a group of 16 states and the North Carolina Department of Environment and Natural Resources are challenging.

At issue—whether states can provide exemptions from emissions limits during periods of startup, shutdown, and malfunction. The court filing states “specifically, EPA erroneously concluded that the following State’s EPA-approved State Implementation Plans are ‘substantially inadequate’ with respect to periods of startup, shutdown and malfunction and must be revised.”

Carbon Emissions from Electric Power Plants Hit 27-Year Low

The U.S. Energy Information Administration (EIA) said those same emissions that the Clean Power Plan is trying to diminish hit a 27-year low in April (subscription). Figures released Wednesday show that electric power plants emitted 141 million tons of carbon dioxide in April 2015, the lowest since April 1988.

A big factor in the drop is the long-term shift from coal to cleaner and cheaper natural gas, according to EIA Economist Allen McFarland, who downplayed the role of, economic sluggishness. “You don’t have a 27-year low because of an economic blip. There are more things happening than that,” McFarland said, noting that the price of natural gas has dropped 39 percent in the past year.

Increased renewable fuel use and energy efficiency are additional factors, say other experts, including Princeton University Professor Michael Oppenheimer, who also highlighted the role of regulation.

“A factor behind all these trends is that the writing is on the wall about the future of coal and thus the future of U.S. carbon dioxide emissions,” said Oppenheimer. “The regulatory noose is tightening and companies are anticipating a future with lower and lower dependence on fossil fuels and lower and lower carbon dioxide emissions.”

Federal analysts predict that this year the amount of electricity from natural gas will increase 3 percent compared to 2014 while power from coal will go down 10 percent.

Significant changes in the electric power sector fuel mix since April 1988 have made electricity generation less energy and carbon intensive. Some analysts point out that power plant emissions have already fallen by about 15 percent since 2005, putting the country halfway to the Obama administration’s goal before the Clean Power Plan goes into effect.

Spring Release for Changes to MATS Rule

Court-mandated changes to the Mercury and Air Toxics Standard (MATS) rule, which requires coal-burning power plants to reduce emissions of toxic pollutants by installing control technologies, are expected by the EPA in 2016.

The EPA wrote in a filing with the U.S. Court of Appeals for the District of Columbia Circuit that it “intends to submit a declaration establishing the agency’s plan to complete the required consideration of costs for the ‘appropriate and necessary’ finding by spring of next year.” The Supreme Court ruled this summer that the Clean Air Act required the EPA to consider the costs of MATS when determining whether it was “appropriate and necessary” to regulate mercury emissions from the power sector.

In the filing, EPA lawyers note that there is “extensive documentation” of the cost of MATS. The rule will remain in effect while the lower court determines whether to vacate it as the EPA works on the cost issue, Detroit News reports.

The Climate Post offers a rundown of the week in climate and energy news. It is produced each Thursday by Duke University’s Nicholas Institute for Environmental Policy Solutions.