EPA argues against court-imposed stay of Clean Power Plan

coal plant

The U.S. Environmental Protection Agency said in Dec. 3 arguments at the U.S. Court of Appeals for the D.C. Circuit that the court should not stay the agency's recently-published Clean Power Plan for existing power plants since immediate reductions in plant CO2 emissions are needed to combat climate change.

The 87-page filing was lodged in a combined series of appeals triggered by the EPA's Oct. 23 publication of the final Clean Power Plan, with the lead plaintiff in the complaint being the coal-producing state of West Virginia. The Clean Power Plan calls for 32 percent greenhouse gas reductions from existing power plants by 2030, with an interim compliance deadline of 2022.

"The Rule will, over its lifetime, secure critically important reductions in carbon dioxide ('CO2') emissions from the largest emitters in the United States – fossil-fuel-fired power plants," said the Dec. 3 EPA brief. "Such emissions pose a monumental threat to Americans’ health and welfare by causing long-lasting changes in our climate, resulting in an array of severe negative effects, including drought, disease, increasingly serious weather events, and rising sea levels. Section 111(d) of the Clean Air Act ('CAA' or 'Act'), 42 U.S.C. § 7411(d), expressly directs EPA to address such dangers by promulgating emission guidelines, and the Rule reflects EPA’s reasonable determination of the best system for limiting the amount of CO2 that plants pump into the atmosphere.

"The Rule identifies highly cost-effective and proven emission-reduction strategies that are already widely employed by power plants. It then relies on those strategies to set guidelines for states (or, if a state so chooses, EPA acting on its behalf) in establishing performance standards for those plants. Those performance standards will be gradually phased in over an eight-year period beginning in 2022. Until at least that time, power plants will not be subject to any CO2 requirements. And states that intend to establish standards have nearly three years before they would be required to submit such standards to EPA for approval.

"State and industry stay movants either oppose any federal regulation of power plants’ voluminous CO2 emissions, or seek to limit such regulation to negligible requirements. Even though all significant regulatory deadlines are set well after review in this Court would conclude, Movants seek the immediate and extraordinary relief of a stay. Their requests for a stay should be denied. Movants cannot establish any – let alone all – of the elements required."

First, said EPA, the appealing parties have no likelihood of merits success. EPA said it has well-established authority under Section 111(d) to limit air pollution emitted by power plants, and the CO2 performance levels in the Clean Power Plan reflect EPA’s thorough, careful and reasonable application of express statutory factors to the particular facts and circumstances of power generation and CO2. Many sources are already implementing the measures discussed in the rule, at least to some degree, on their own.

Second, EPA said the appealing parties do not face any irreparable harm during the "relatively short" period of judicial review in this appeals court. States have up to three years to submit plans for implementing the rule’s emission guidelines, and those plans are less complicated than other types of plans that states prepare to meet CAA obligations – sometimes within a more compressed time period.

Moreover, each state is free to elect to have EPA do all of the work required to adopt and implement standards within the state, in which case the rule imposes no deadlines or burdens on the state at all.

Third, EPA said the public interest and balance of harms strongly weigh in favor of denying movants’ stay request. The rule will secure critically important reductions in greenhouse gas emissions from the largest emitters in the United States. And because CO2 in the atmosphere is long-lived, any delay in implementation of the rule and securing these emission reductions is highly consequential.

EPA noted that the states pursuing this case have also moved for expedited briefing. Because the period for filing petitions for review of the rule does not close until Dec. 23, 2015, EPA believes this request is premature.

EPA suggested that the court require the parties to confer and to submit proposed briefing schedules and formats (jointly, if possible) by an appropriate date following the filing deadline.

EPA pushes carbon capture in one rule, but says it's not the "best" option in another

One interesting point from the Dec. 3 brief is about carbon capture and storage technology. EPA said it did not require this technology under the Clean Power Plan because other options like gas-fired generation and renewable energy were more viable. Yet in a companion rule also published on Oct. 23 (which is under separate appeals), EPA is requiring CCS for all new coal plants.

In the Clean Power Plan, EPA determined that the “best system of emission reduction” that is “adequately demonstrated” for existing plants includes a combination of three measures, referred to as “building blocks”:

·      Improving heat rate at coal-fired steam plants;

·      Substituting increased generation from lower-emitting existing natural gas combined cycle plants for generation from higher-emitting steam plants (which are primarily coal-fired); and

·      Substituting increased generation from new zero-emitting renewable energy generating capacity for generation from fossil-fuel-fired plants (which are primarily coal- or gas-fired).

EPA determined these measures were “adequately demonstrated” because each of them is already a well-established technique for reducing CO2 emissions from power plants. EPA found that these measures are collectively the “best system of emission reduction” because they can achieve substantial CO2 reductions at reasonable cost, without adverse impacts on energy availability or otherwise.

EPA determined that individual sources can implement all of these measures, including the second and third “generation-shifting” measures, through a set of actions that range from making direct investments in zero- or low-emitting plants to purchasing emission-rate credits from entities that have made such investments.

The agency added: "EPA considered alternative systems and found them inferior.“

Among these, EPA considered technologies to capture and inject CO2 underground ('carbon sequestration'). EPA also considered measures to substitute, in part or in whole, natural gas as the fuel source at coal-fired plants ('gas co-firing'). While these measures are feasible for some existing plants and could achieve substantial reductions, EPA concluded they were less cost-effective for existing plants than the set of measures collectively identified as the 'best system.'

"Having identified the 'best' CO2 reduction system, EPA quantified the degree of emission reduction achievable under that system for two subcategories of sources: steam units (which are primarily coal-fired) and combustion turbines (which are primarily gas-fired). To best reflect the Nation’s interconnected electrical system, EPA quantified the reductions achievable for each subcategory in 2030 in each of three regions. EPA then established uniform performance levels for each subcategory based on the least stringent of the three calculated regional rates."

The agency added at a later point in the Dec. 3 brief: "Generation-shifting measures in particular can achieve substantial CO2 reductions especially cost-effectively, and without jeopardizing electric system reliability. Although other technology-based measures such as gas co-firing and carbon sequestration are feasible for a segment of the industry, those technologies are at this point considerably more expensive to implement than the demonstrated generation-shifting strategies the electricity sector has been employing for decades. Thus, even if EPA had based the performance levels on the application of those technologies, sources would likely still have met their resulting obligations using more cost-effective generation-shifting strategies."

EPA also argued: "The Rule will be implemented gradually and is consistent with prevailing trends in the energy sector towards more renewable and gas-fired generation. These trends are due largely to falling prices for renewables and gas, as well as the aging of existing coal plants. Thus, the Rule does not call for any 'fundamental redirection of the energy sector,' but instead builds upon the existing direction of the power industry. While EPA projects that the Rule will reduce coal-fired generation by the time the Rule is fully implemented in 2030, the amount of that reduction is projected to be less than, and to occur more gradually than, the reduction that has already occurred from 2002 to 2012. EPA further projects that significant reductions in coal-fired generation would occur even in the Rule’s absence, and that following full implementation of the Rule in 2030, the amount of coal-fired generation will be 27.4 percent of total generation, which is only 5.4 percent less than projected without the Rule."

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