States request EPA decline to enter settlement negotiations over NSPS

21 states EPA decline settlement negotiations New Source Performance Standard NSPS Environmental Protection Agency

A group of 21 states sent a letter to U.S. Environmental Protection Agency Acting Administrator Bob Perciasepe Tuesday urging the agency to not enter any form of negotiations with groups who have filed notices of intent to sue related to the EPA’s failure to finalize New Source Performance Standard regulations.

The EPA received the notices from a group of states as well as a group of environmental agencies. The letters provided a required 60-day notice before filing a lawsuit if no action is taken to resolve the issues, though both groups have said they intend to delay the lawsuits because of reports President Barack Obama will be announcing action on climate change.

The letter filed Tuesday, sent by Nebraska Attorney General Jon Bruning and cosigned by 20 other attorneys general, requested the EPA “decline to enter any form of settlement negotiations to resolve the concerns of the petitioners” who allege the EPA failed to perform non-discretionary duties of promulgating standards of performance for greenhouse gas emissions from new electric generating units.

“Air quality is of equal concern to all States,” the attorneys general wrote in the letter. “Appropriate process should not be subjugating, and effective policymaking cannot by forced to fruition by threatening litigation.”

If the EPA does enter settlement negotiations, however, the states requested to be part of any potential resolution.

“In the event the EPA deems it necessary and appropriate to allow the petitioners to commandeer the policymaking process under the threat of litigation, we request notice and an opportunity to participate in the resolution of the notices,” the attorneys general wrote.

According to the attorneys general, the EPA did not fail to perform a non-discretionary duty by not finalizing the NSPS regulations because the Clean Air Act only requires the agency to revise the standards if appropriate. The letter states “the only statutorily-imposed duty for EPA is to develop a process for States to submit plans for regulating existing sources; and this duty only arises when a standard of performance for new sources is found to be applicable.”

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.

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