EPA to Use the Clean Water Act and the National Environmental Protection Act to Shutdown Coal-fired Power Plants
EPA to Issue Rules on Smokestack Greenhouse Gases Soon
April 9, 2010
Reuters - The U.S. Environmental Protection Agency will soon issue rules that will determine which power plants and factories will face greenhouse gas regulations, an agency official said on Tuesday.
The measure, known as the "tailoring rule," will set emissions thresholds for the big emitters of gases blamed for warming the planet, such as coal-fired power plants and plants that make cement and glass.
EPA Administrator Lisa Jackson said earlier this year that only plants that emit 75,000 tonnes per year or more of carbon dioxide are likely to be regulated under the rule in the next two years. The EPA wants to limit U.S. Clean Air Act regulations, or "tailor" them, so they apply only to larger polluters to avoid overwhelming federal and state agencies with paperwork.
"We're expecting that rule to be done very shortly, hopefully by the end of the month," said Gina McCarthy, an assistant administrator at the Environmental Protection Agency, told a conference.
Regulated plants would be required to hold permits demonstrating that they are using the latest technology to pare back emissions. They could also face other future EPA greenhouse gas regulations if Congress fails to pass a climate bill.
The Obama administration has long said it prefers that Congress pass legislation to limit greenhouse gases.
But with climate legislation stalled in Congress, the EPA has begun to issue rules that are expected to help cut emissions -- which has angered some U.S. lawmakers and industry.
The 75,000 tonne threshold could lead to a rash of lawsuits against the EPA as it pits big power plants against small ones, said Kevin Book, an analyst at ClearView Energy Partners.
Companies such as Calpine Corp, Southern, Dynegy Inc may benefit because they have "peaker" power plants that only run during times of heavy demand. The plants rake in profits during high times of high power demand but they may escape regulations because their annual emissions are small.
But any company that owns huge power plants that are on most of the time, including the above ones, could face additional costs that small plants would avoid, Book said.
"The short road to a law suit is picking winners and losers in an industry," Book said about the rule, which he suspects will lead to an increase in litigation against the EPA.EPA's McCarthy said the agency is used to lawsuits and will carry on. Last week the EPA issued the first ever U.S. limits on greenhouse gas emissions from vehicles.
Starting next year the EPA will also require stationary sources of the gases, such as power companies and manufacturers, to get permits saying new plants or expansions use the best available technology to cut emissions.
McCarthy said the agency is trying to quell fears that the coming rules will require all big plants to use expensive, untested technology such as carbon capture and storage, or CCS. That method would allow snaring of the gas before it reaches the smokestack and socking it away for permanent storage.
"We've had discussions with industry sectors that are concerned they we're going to be requiring CCS for all facilities out there," McCarthy told reporters.
"Clearly the rules under the Clean Air Act that we are going to be implementing look at moving forward already demonstrated technologies, not innovative technologies that have yet to be properly demonstrated," she said.
EPA's Ginormous Power Grab
April 8, 2010Iain Murray - It's a sure sign that a government agency has become overmighty when it vastly increases its budget, grabs power unconstitutionally, and treats Congress with contempt. All of this applies to the Environmental Protection Agency.
Unless Congress acts quickly to curb the EPA's power, it will become a huge drag on the economy. Few bodies are more deserving of cutbacks now. This year, EPA's budget (which had hovered at $7 billion to $8 billion since 1997) increased by 34 percent, to more than $10 billion for the first time ever. The budget increase does not translate into an upsurge in staffing level -- which remains lower than its apex of more than 18,000 workers in 1999 -- but instead represents much more patronage in the form of grants to states.
This increased patronage comes at a time when the EPA is accruing much more power. Its finding under the Clean Air Act that greenhouse gases endanger public health and welfare goes way beyond the powers of the act. The agency has decided it has the power to:
- License California and other states to adopt nonfederal fuel-economy standards within their borders.
- Act as co-equal (or even senior partner) with the National Highway Traffic Safety Administration (NHTSA) in setting fuel-economy standards for the auto industry.
- Establish climate and energy policy for the nation.
- "Tailor," that is, amend, the Clean Air Act to avoid an administrative debacle of its own making.
The details of each of these actions are complicated, but the basic thrust of this four-step power grab is as follows.
By granting California the power to ignore federal fuel-economy standards, the EPA created a regulatory patchwork that imposes significant burdens on the auto industry.
This led to the White House brokering a deal whereby the EPA muscles in on the NHTSA's statutory authority to regulate fuel-economy standards, something for which the EPA has no statutory authority.
The EPA claims this then compels it to regulate greenhouse gas emissions from stationary sources, thereby making it the effective arbiter of national climate policy -- even as Congress debates what to do about the issue.
Even the EPA seems to recognize the absurdity of the resulting regulations under the language of the Clean Air Act -- which would lead to the EPA having to issue permits for fast-food franchises and large apartment buildings to emit greenhouse gases- - so the agency took upon itself the power to tailor statutory language, thereby playing lawmaker, to avoid the regulatory debacle which it itself had put in motion.
Fortunately, some lawmakers have caught on to what the EPA is up to. Sen. Lisa Murkowski, Alaska Republican, was so concerned that she wrote to EPA Administrator Lisa Jackson, asking 13 simple questions about the proposed course of action. The reply she received was so evasive that it answered only two of the questions -- and partially at that.
Congress may soon get its first real opportunity to rein in this rogue agency. Sometime between now and May 25, the Senate is expected to vote on Mrs. Murkowski's Congressional Review Act (CRA) resolution of disapproval. This measure would veto the legal force and effect of EPA's endangerment finding. The EPA's nongovernmental allies are so worried about this resolution that they have engaged in a smear campaign, accusing Mrs. Murkowski and others of seeking to impose a "Dirty Air Act." She has not been intimidated, though, and her proposal is likely to come to a vote.
A rogue regulatory agency is like an oil tanker with sails. Once in motion, it takes a lot to stop it. Congress can take the wind out of the EPA's sails through the Murkowski resolution of disapproval and a significant reduction in the agency's budget.
On the other hand, if the EPA gets away with this power grab, we can expect further abuses of its authority in relation to the Clean Water Act and the National Environmental Protection Act. If it gets its way, the agency's $10 billion budget will look like chicken feed.
