States, environmental groups to delay New Source Performance Standard suit

States environmental groups delay lawsuit against Environmental Protection Agency EPA NSPS New Source Performance Standard

Several states and groups that filed letters of intent to sue the U.S. Environmental Protection Agency for failing to finalize New Source Performance Standard regulations will delay any litigation because of public reports that President Barack Obama will be announcing action on climate change.

The EPA received notices of intent to sue from a coalition of states led by New York Attorney General Eric Schneiderman and a coalition of environmental groups for failure to finalize the New Source Performance Standard (NSPS) for new power plants. The letters provide a required 60 day notice before a suit is filed if no action is taken to resolve the issue.

Both groups who sent letters of intent to sue to EPA Acting Administrator Bob Perciasepe said they were keeping their options open, depending on Obama’s potential announcement regarding climate change.

“Due to public reports that the President will be announcing major action on climate change very soon, the attorney general has decided to postpone a lawsuit on this matter for a short period of time,” stated Melissa Grace, a spokeswoman for Schneiderman, in an emailed statement to Power Engineering.

The other states that joined New York in its letter were Connecticut, Delaware, Maine, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont and Washington.

Megan Ceronsky, an attorney for the Environmental Defense Fund, confirmed the environmental groups would also delay any action for the time being. The Sierra Club and the National Resources Defense Council joined the EDF on the letter of intent sent to the EPA.

“We are not filing suit at present but are continuing to explore all of our options going forward,” Ceronsky stated in an email. “Power plants are the largest source of carbon pollution in our country and one of the largest sources in the world, and EPA has a responsibility under the nation’s clean air laws to protect human health and the environment from this dangerous pollution.”

The EPA’s deadline for finalizing the NSPS, which would limit carbon dioxide emissions to 1,000 pounds per MWh for new power plants, was April 13. Under the Clean Air Act, the agency must issue the rule within a year of receiving public comments. The agency announced on April 15 it would delay the rules finalization pending review of more than 2 million public comments it had received on the rule. The agency did not set a timetable for any possible revisions based on the comments.

The EPA had made an agreement in 2011 with Schneiderman and a coalition of states to issue greenhouse gas emission (GHG) standards for new, modified and existing power plants under the Clean Air Act. Finalizing the NSPS would have partially fulfilled the agreement, which resolved a lawsuit brought in 2006 challenging the EPA’s failure to comply with the legal mandate of the Clean Air Act to limit emissions of GHGs emitted by power plants, according to the New York State Office of the Attorney General.

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