Court Upholds Endangerment Finding and Tailoring RuleJune 27, 2012
The U.S. Court of Appeals for the District of Columbia Circuit has upheld EPA’s “endangerment finding” that greenhouse gases are a threat to human health and welfare — a finding that provides the bases for all of the EPA’s greenhouse gas rules - and the EPA's tailoring rules. The case, Coalition for Responsible Regulation v. EPA was decided partially on the merits and partially on a lack of standing.
PSC Issues Energy ReportsJune 21, 2012
The Public Service Commission of Wisconsin recently issued a draft of the biennial strategic energy assessment and a report on the cost of the state’s Renewable Portfolio Standard (RPS). Both reports will be used to guide state energy policy decisions.
DNR Flags Rules for EliminationJune 21, 2012
In response to Governor Walker’s Executive Order #61 Relating to Job Creation and Small Business Expansion, which asks all state agencies to conduct a thorough review of its regulations and to recommend for possible elimination outdated and overly cumbersome regulations that provide no or little demonstrable benefit, the DNR has identified 11 rules that it says are not necessary and two that need amending.
Greenhouse Gas Standards for New Power Plants
Most Recent Action
Comments on the proposed rule were due June 25, 2012. See comments from Wisconsin below.
In April 2007, in the landmark case Massachusetts v. EPA, the U.S. Supreme Court ruled that greenhouse gases (GHG), including carbon dioxide, are potentially air pollutants covered by the CAA. The court further ruled that the EPA was required to determine whether emissions of GHGs from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.
On December 15, 2009, the EPA Administrator found that the current and projected concentrations of greenhouse gases endanger the public health and welfare of current and future generations. A year later, the EPA agreed to issue the power plant rule as part of a legal settlement with the Natural Resources Defense Council, other environmental groups, and some states (New York v. EPA, D.C. Cir., No. 06-1322).
On March 27, 2012, the Environmental Protection Agency proposed the first ever Clean Air Act standard for carbon emissions from future power plants. The rules have the potential to end the construction of conventional coal-fired facilities in the United States.
Section 111 of the CAA
The proposed rule would apply only to new fossil‐fuel‐fired electric utility generating units (EGUs). For purposes of this rule, fossil‐fuel‐fired EGUs include fossil‐fuel‐fired boilers, integrated gasification combined cycle (IGCC) units and stationary combined cycle turbine units that generate electricity for sale and are larger than 25 megawatts (MW).
The EPA is proposing that new fossil‐fuel‐fired power plants meet an output‐based standard of 1,000 pounds of CO2 per megawatt‐hour (lb CO2/MWh gross). According to the EPA’s fact sheet on the proposed rule:
- New natural gas combined cycle (NGCC) power plant units should be able to meet the proposed standard without add‐on controls. In fact, based on available data, EPA believes that nearly all (95%) of the NGCC units built recently (since 2005) would meet the standard.
- New power plants that are designed to use coal or petroleum coke would be able to incorporate technology to reduce carbon dioxide emissions to meet the standard, such as carbon capture and storage (CCS).
- New power plants that use CCS would have the option to use a 30‐year average of CO2 emissions to meet the proposed standard, rather than meeting the annual standard each year.
- Plants that install and operate CCS right away would have the flexibility to emit more CO2 in the early years as they learn how to best optimize the controls.
- A company could build a coal‐fired plant and add CCS later. For example, a new power plant could emit more CO2 for the first 10 years and then emit less for the next 20 years, as long as the average of those emissions met the standard.
- CCS is expected to become more widely available, which should lead to lower costs and improved performance over time.
According to EPA's regulatory impact analysis of the proposed rule, the proposed standard would have “negligible [carbon dioxide] emission changes, energy impacts, quantified benefits, costs, and economic impacts by 2020.” This is because the EPA is assuming that power plants currently projected to be built going forward would already comply with the standard. As a result, the EPA does not project additional cost for industry to comply with this standard.
The EPA's regulatory analysis projects only 2 gigawatts of new coal-fired capacity with carbon capture will be built by 2020. Meanwhile, the agency anticipates 7 gigawatts of natural gas-fired capacity will be built during that period while renewable energy will provide another 26.9 gigawatts of capacity.
The rule is expected to further that trend toward natural gas, as industry representatives say the controls that would be required for coal-fired plants are too expensive, particularly the untested carbon capture and storage systems highlighted in the rule as a control option.
The cumulative impact the proposed rule and of other CAA rules targeting the power sector, including the utility MACT rule and the Cross State Air Pollution Rule, has industry groups concerned that the current regulatory climate is a de facto ban on new coal-fired plants.
During the press conference announcing the rule, EPA Administrator Lisa Jackson said that she has no plans to pursue regulations that would curb greenhouse gas emissions from existing power plants. However, Section 111(d) of the Clean Air Act requires the agency to issue performance standards for existing sources when it regulates pollutants that are not previously regulated. The EPA acknowledged as much in its proposed rule, stating “The proposed rule will also serve as a necessary predicate for the regulation of existing sources within this source category under CAA section 111(d).”
Federal Efforts to Reduce the Cost of Capturing and Storing Carbon Dioxide, Congressional Budget Office, June 2012
Comments from Wisconsin on the Proposed Rule:
Wisconsin Department of Natural Resources, June 2012
Wisconsin Manufacturers & Commerce (WMC), June 2012
Proposed rule, March 2012
Fact sheet summarizing the proposed rule, March 2012
Regulatory Impact Analysis, March 2012
EPA’s press release, March 2012
Environmental Groups Press EPA to Regulate Carbon Dioxide From Existing Power Plants, Great Lakes Legal Foundation blog, June 1, 2012.
Public Response to Proposed Power Plant GHG Rules, Great Lakes Legal Foundation blog, March 28, 2012
EPA Declines to Regulate Greenhouse Gases From Ships, Off-Road EnginesJune 19, 2012
The EPA has turned down a demand from U.S. environmental groups that it curb greenhouse-gas emissions from aircraft, ships, or other off-highway vehicles. The agency’s decision not to regulate nonroad engines, and its indefinite delay in regulating aircraft, comes in response to a 2010 lawsuit from an environmental coalition asking the EPA to address these types of pollution.
Federal Judge Orders EPA to Issue Particulate Matter Proposed RuleJune 18, 2012
As part of a settlement agreement, the EPA has issued proposed revisions to the National Ambient Air Quality Standards (NAAQS) for particle pollution (PM). These revisions would strengthen the annual "primary" fine particle (PM2.5) standard to protect public health and would establish a separate "secondary" fine particle standard to protect visibility in urban areas. The EPA is required to issue a final rule by December 14, 2012.
Dane County Launches New Phosphorous ProgramJune 18, 2012
Dane County has launched a pilot program, the Yahara Watershed Improvement Network, designed to help reduce phosphorus pollution entering the county’s lakes. This adaptive management program, authorized by Wisconsin’s phosphorus rules, allows point sources to work with farmers to achieve larger pollution reductions at a lower cost than point source reductions alone would achieve.
DNR Rolls Out New Online System for Water PermitsJune 15, 2012
Applicants for some state water-related permits can now use a new online system that state water protection officials say will cut paperwork and deliver quicker, more consistent permit decisions and provide better information to the public about proposed projects.
Study Finds Compliance With Utility MACT Will be Challenging in the MidwestJune 14, 2012
A new study prepared by the Brattle Group for the Midwest Independent System Operator (MISO), finds that “meeting MATS will be a major challenge for the industry, states, and MISO for a number of reasons. The industry will need to install retrofits at a pace and scale that exceeds the historical demonstrated capability, while the system operator is likely to experience a substantial operational challenge in the transition.”
EPA Designates Part of Kenosha County as Nonattainment for OzoneJune 13, 2012
The EPA has revised its proposed designation for Kenosha County, and designated parts of the county nonattainment for the 2008 8-hour ozone standard.
While nonattainment designations carry with them substantial regulatory and related economic burdens, the EPA’s decision to designate only two Kenosha County townships, as opposed to six Wisconsin counties, as nonattainment is a welcome policy change.