Court rules that EPA must decide if new water quality standards are needed to protect the Gulf of Mexico

A US District Court in Louisiana recently ruled, in Gulf Restoration Network v. Jackson, that EPA must decide whether it has to impose new water quality standards for nutrient pollution in the Mississippi River watershed. Although that might seem far afield from the Supreme Court’s greenhouse gas emissions decision in Massachusetts v. EPA, in fact it’s a direct descendant. 

The Administrative Procedure Act allows any interested person to petition any federal agency to make, change, or repeal regulations. The APA doesn’t specifically say how courts should review agency responses to petitions, and in general the courts have been quite deferential to petition denials.

Massachusetts v. EPA is best known for holding that states have standing in federal court to challenge actions that contribute to climate …

On Tuesday, the Supreme Court granted six of the nine petitions challenging a DC Circuit Court of Appeals ruling in favor of the EPA’s rules regulating greenhouse gases under the Clean Air Act. However, the Court granted review of only one aspect of the various petitions: whether the EPA’s use of vehicle emission standards to regulate greenhouse gases triggers permitting requirements for stationary power sources that contribute to carbon pollution.

The regulations at issue implement the Clean Air Act’s Prevention of Significant Deterioration (PSD) program, which regulates new major emitting sources in areas meeting the Act’s minimum standards for at least one of the so-called Criteria Pollutants. In these areas, which include almost everywhere in the United States, the Act requires EPA to impose a permit requirement on major emitting facilities, which would include a best available technology requirement, if the facility emits …

In late September, the EPA proposed regulation of new power plants’ greenhouse gas emissions (GHGs) under the Clean Air Act’s “New Source Performance Standards” (NSPS) provisions. Now an often little noticed follow-on provision—Section 111(d)--- is suddenly in the spotlight. Section 111(d) requires regulation of existing sources that are in categories of polluters subject to NSPS regulation. President Obama, EPA, industry, environmental groups, and states have all entered the fray about what Section 111(d) requires and allows. 

This issue presents several important choices and issues. First, regulation of existing US fossil fuel burning power plants—the source of over 30% of US carbon dioxide emissions-- is unavoidably central to US efforts to reduce GHG emissions. Second, in the face of the federal government’s long climate change inaction, many states and regions have already created programs and laws designed to reduce GHG pollution …

As it turns out, many of the same people who deny that climate change is a problem also deny that government default would be a problem.  No doubt there are several reasons: the fact that Barack Obama is on the opposite side of both issues; the general impermeability of ideologues to facts or expert opinion; a general suspicion of elite views.  But I’d like to suggest that there is also a deeper belief about the invulnerability of systems to outside shocks, either on the view that the system is very loosely linked or has a very strong tendency to return to equilibrium. These are actually a bit contradictory since strong corrective forces imply tight linkage, but most people don’t notice that.

For example, you might think that changing one atmospheric gas wouldn’t really have much impact on the world or that counteracting forces like …

On September 17^th, 2013, US EPA released a massive 331 page draft report distilling peer reviewed science regarding “connectivity” of various sorts of American water bodies with larger bodies of waters, such as rivers and lakes.   It also sent to the White House for review a draft proposed rule about how it and the Army Corps of Engineers would determine what sorts of waters would count as “waters of the United States” subject to federal jurisdiction under the Clean Water Act. Simultaneously, EPA (perhaps at the request of the White House) withdrew a draft 2011 “guidance” document regarding what “waters” could be protected; it had been in limbo for many months before the White House regulatory “czar,” the Office of Information and Regulatory Affairs (OIRA). So far, no one outside of the executive branch has seen the new proposed rule, and the science report is just …

Last week, E&E News reported a breakdown in talks over EPA’s long- delayed stormwater rule. In 2009, in a settlement with the Chesapeake Bay Foundation, EPA promised a new rule by November, 2012. That deadline has long since passed, and apparently EPA and environmental groups are at an impasse in their negotiations over a  new timeline.

The causes for the delay, which have been thoroughly covered here, are many, but all they boil down to a central problem: urban stormwater is hard to regulate, and EPA is struggling to figure out how to improve the existing system. There are several key reasons for those challenges. 

 First, urban stormwater problems generally arise from the combined  runoff of very large numbers of properties. That makes an individual  permitting approach, which has been quite successful for discharges of  industrial and wastewater treatment plant effluent, hard to use; writing  permits …

On September 20, 2013 the EPA proposed new source performance standards for greenhouse gas emissions for new power plants.  Although the agency repackaged and fine-tuned an earlier proposal, issued in April 2012, it continues to hold the coal industry’s feet to the fire.  The proposal makes clear that new coal-fired power capacity cannot be built without major reductions in carbon emissions. The agency’s new proposed rule continues to convey a critical message to utilities contemplating new energy-generation investments: utilities can no longer develop uncontrolled high-emission energy sources; future energy investments must either be lower-carbon or control carbon.  The agency’s proposal provides clear parameters for future investments that set the nation on a more sustainable energy path.

This essay focuses on a critical difference between the September 2013 proposal and the earlier April 2012 proposal: how EPA has categorized electricity-generating units (EGUs).  In this essay …

This entire week, the coal industry and electric utilities have been decrying the EPA’s proposed rule, released today, limiting CO₂ emissions from new coal-fired power plants. Experts predict the proposed rule will place limits on coal-fired power plants that will make them impossible to operate in the absence of carbon capture and sequestration (CCS) technology, which will significantly increase the cost of running existing plants and building new plants. These costs, as well as today’s low natural gas prices (and low wind prices in some areas), will transform coal from the low cost option for electricity generation in many parts of the country to a higher cost option. In the press, the coal industry and utilities contend that CCS technology is little more than a pipe dream. They argue that the rules will violate the Clean Air Act because CCS is not a commercially …

Almost every new power plant that the electric utility industry has built in recent years has been a natural gas powered plant. Industry rarely builds new coal-fired power plants anymore because gas has become much cheaper than coal. That is a very good thing. Absent rather expensive carbon capture and storage, new coal-fired power plants emit far more greenhouse gases than natural gas powered plants.

The new source standards promulgated today will tend to lock in the current status quo. They will likely impose no net cost on the economy, because natural gas has become cheaper than coal. Instead of generating electricity with the dirtiest fuel source, we will continue to rely more heavily on a somewhat cleaner fuel source. Given the effects of climate disruption one could argue that these standards do not go far enough. Climate disruption has likely caused heat waves, sea level rise …