Waiting for the GHG New Source Performance Standards: A Good Start, But Will EPA's Power Plant Controls Make a Difference?
The Clean Air Act’s potential to address the nation’s greenhouse gas emissions is slowly being unveiled. EPA’s expected announcement of highly-anticipated new source performance standards for power plants by the end of January will reveal whether the agency has the political will to use its existing authority to re-shape the United States’ dependence upon high-carbon power. Section 111 of the Clean Air Act is a potentially potent tool. It arguably allows EPA to re-direct new investment away from heavily-polluting coal-fired power and toward less polluting alternatives. It also gives the agency the authority to address on-going emissions from existing power plants. Weaning the nation from its dependence on coal-fired power is essential to a new energy future. While EPA may fear the political storm generated by the prospect of change, it has the opportunity to begin a positive transformation to a more sustainable energy infrastructure.
The current rulemaking initiative arose out of a lawsuit brought by states and environmental groups, who argued that EPA was required to develop nationwide performance standards for greenhouse gas (GHG) emissions from new and existing stationary sources. In December 2010, EPA and the plaintiffs reached a settlement that required EPA to propose …
The Supreme Court arguments in American Electric Power Company v. Connecticut on Tuesday raised profound issues about the respective role of the courts and administrative agencies in controlling greenhouse gas emissions from stationary sources, emissions that remain uncontrolled notwithstanding their significant climate impacts. As my CPR colleague Doug Kysar has noted, at times the Court appeared reluctant to embrace industry’s political question and prudential standing arguments, arguments that would undermine the courts’ traditional common law powers. If the Court rejects these jurisdictional arguments, the central issue would be whether EPA’s GHG regulatory actions under the Clean Air Act have “displaced” the federal common law of interstate nuisance.
If displacement is the critical issue, did the Court ask the right questions? For example, Justices Kagan, Ginsburg, and Breyer addressed the issue of institutional competence. Directly and indirectly, their comments suggested that the plaintiff states were asking …
The environment received an early Christmas present from the Environmental Protection Agency yesterday, with EPA’s announcement that it would propose New Source Performance Standards (NSPSs) for greenhouse gas (GHG) emissions from power plants and refineries in 2011, and then finalize the regulations in 2012. The decision resolves a lawsuit brought by states, local governments, and environmental groups. EPA’s initiative will impose cost-effective controls on stationary sources of GHGs, and complement the agency’s existing initiatives for mobile and stationary sources of GHGs. While the CAA might not be as flexible or comprehensive as recently proposed congressional GHG legislation, EPA is making sorely needed progress to control the nation’s GHG emissions.
Notwithstanding industry’s ongoing criticism of applying the CAA to GHGs, the initiative is hardly a surprise. The Supreme Court made clear in its 2007 Massachusetts v. EPA decision that GHGs are “air pollutants …
The environmental blogosphere is already abuzz over the Supreme Court’s grant of certiorari in AEP v. Connecticut. The case is of critical importance in determining whether the courts have a role to play in adjudicating climate change. Few believe that the courts are a good venue for developing climate policy. But for the foreseeable future, the question is whether the traditional common law can fill in for Congress’ failure to take more comprehensive action.
In AEP, Connecticut, along with several other states and public interest organizations, brought a public nuisance action against the five largest U.S. electric utility companies. The plaintiffs sought injunctive relief in the form of emissions limits on the utilities’ facilities. In 2005, the district court held that applying public nuisance law to the problem of climate change presented a nonjusticiable political question, and dismissed the case. In 2009, the Second Circuit …
As “Cap-and-Trade Is Dead” continues to echo through the empty halls of Congress, California rolled out its proposed greenhouse gas (GHG) cap-and-trade program on Friday. The proposed regulations send a powerful message that, notwithstanding political paralysis at the federal level, the states are proceeding with meaningful climate action.
The proposed cap-and-trade program, to be voted on by the California Air Resources Board (CARB) at its December 2010 meeting, is scheduled to take effect in January 2012. At the outset, it will apply to the state’s large stationary sources, including manufacturing and utilities. Beginning in 2015, the program will also cover fuel distributors, including distributors of transportation fuels and natural gas or propane not covered by the program’s earlier phase.
The cap-and-trade program is just one of many emissions reduction strategies outlined in California’s scoping plan, the planning document that guides the state’s implementation …
After endless negotiations and draft bills, the Senate has given up on climate legislation that would place any sort of cap on the nation’s emissions, and will likely settle for a few select energy initiatives. Congress’ failure to act is galling. Hand wringing is fully justified. But what now? State and local governments have become accustomed to federal paralysis, and will, I hope, continue to march on notwithstanding the tight lock that certain vested fossil fuel interests and industry have clamped on congressional action. Moreover, EPA’s efforts to regulate greenhouse gases (GHGs) under the Clean Air Act have become all the more critical in the absence of comprehensive federal climate legislation. A key question, however, will be whether state, Clean Air Act, and existing federal energy laws can make up for the absence of more comprehensive federal climate legislation.
In the last several years, over …
In “Minding the Climate Gap: What’s at Stake if California’s Climate Law Isn’t Done Right and Right Away,” released Wednesday, researchers from several California universities have correlated the relationship between greenhouse gas (GHG) emissions and associated co-pollutants in several California industries. The results demonstrate that California’s climate law, AB 32, enacted in 2006, could help reduce not just carbon dioxide emissions, but a variety of co-pollutants that have contributed to the state’s persistent pollution. At the same time, the study demonstrates that if the state chooses to implement an unfettered GHG trading program, that program could continue or worsen existing racial disparities in pollution. The study proposes several carefully tailored policies that would maximize a cap-and-trade program’s benefits to public health and help narrow current inequities. The proposals, tailored to California’s emerging cap-and-trade program, could provide a model for federal …
Senator Murkowski’s proposal to disapprove EPA’s scientifically and legally justified finding that greenhouse gases endanger the public health and welfare would strip the federal government of its primary legal mechanism for addressing catastrophic climate change. If Congress does not think the Clean Air Act (CAA) is the best mechanism for regulating greenhouse gases, it should pass legislation providing a better alternative, not gut the only law that currently applies to still-uncontrolled emissions.
As the Supreme Court found in Massachusetts v. EPA in 2007, greenhouse gases are clearly “air pollutants” as defined by the Clean Air Act. The CAA purposefully crafted a broad definition in order to empower EPA to respond to new threats as they emerge. EPA’s recent endangerment finding was the logical, legally required, and inevitable next step. The science is unassailable: greenhouse gas emissions pose a profound danger to the public health …
The latest version of the Senate climate bill, released by Senator Boxer on Friday, October 30, retains EPA’s authority to establish meaningful facility regulations under the Clean Air Act (CAA) while freeing EPA of the obligation to implement CAA provisions that are ill-suited to controlling greenhouse gases (GHG). (Section 128(g): Amendments Clarifying Regulation of Greenhouse Gases under Clean Air Act (at page 867). The Friday version of the bill is available by E&E subscription here.) The Senate bill’s continuing preservation of core regulatory authority is superior to the House bill’s sweeping preemption of traditional regulation (see my previous analysis). Ultimately, however, Congress should give EPA regulatory authority in a manner uniquely suited to the character of GHG emissions, rather than continuing to refine existing CAA authority.
The Senate bill limits EPA authority to require pollution controls to large facilities: those that emit more …
This post is the second in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30.
Wednesday was a big day for advocates of traditional regulation. While the Waxman-Markey bill proposed exempting greenhouse gases (GHGs) from key Clean Air Act (CAA) provisions, the Boxer-Kerry bill proposes a greenhouse gas (GHG) cap-and-trade program to complement rather than replace the CAA’s standard authority to establish regulations for stationary sources of air pollutants. Almost simultaneously, EPA proposed a rule that would set the stage for applying CAA standards for new and modified sources on the nation’s biggest GHG emitters.
Most of the Clean Air Act’s existing authority is retained under the Boxer-Kerry bill. That means that EPA can establish standards for all new facilities and for existing facilities that significantly modify their plants. (More specifically, EPA …
