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EPA's New Regulatory Front

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Title

EPA's New Regulatory Front

Regional Haze and the Takeover of State Programs

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The stated mission of the Environmental Protection Agency (EPA) is to protect human health and the environment. EPA has for the past four years cited this mission as it wages a multi-front battle against fossil fuels, imposing a series of increasingly large, costly regulations designed to limit fossil fuels’ extraction, use, emissions, and waste disposal. These regulations, which among other things, seek to reduce hazardous air pollutant emissions, the interstate movement of air pollutants, greenhouse gases, solid waste disposal, and water pollution, have been the focus of intense congressional and public scrutiny. In the end, EPA finalized some regulations, revised some, delayed others, and in a few instances was forced to start over. But the impact of these regulations is unmistakable and has led to—and will continue to— cause early retirement of a long list of energy facilities, chief among them coal-fired power plants.

Despite all the publicity for other regulations, one of EPA’s more dubious, and arguably illegal regulatory efforts remains below the radar to many: the Regional Haze rule.

EPA’s Regional Haze program, established decades ago by the Clean Air Act, seeks to remedy visibility impairment at federal National Parks and Wilderness Areas. Because Regional Haze is an aesthetic regulation, and not a public health standard, Congress emphasized that states, and not EPA, should be the lead decision makers. However, EPA—with some help from its friends at special interest groups and the controversial “Sue and Settle” Rulemaking process— has devised a loophole to usurp state authority and federally impose a strict new set of emissions controls that cost 10 to 20 times more than the technology the states would otherwise have used. Here’s how it works: In five Consent Decrees (see Appendix C) negotiated with environmental groups, EPA has willingly committed itself to deadlines to act on the states’ Regional Haze strategies. On the eve of any given deadline the agency, due to the Consent Decree, determines that it cannot approve a state’s strategy to reduce haze due to alleged procedural inadequacies. Then, EPA claims that it has no choice but to impose its preferred controls through a Federal Implementation Plan (FIP) in order to comply with the Consent Decree.

Already, EPA has used this pretextual rationale to impose almost $375 million in annual costs on six coal-fired power plants in New Mexico, Oklahoma, and North Dakota. It has similarly proposed $24 million in annual costs on a coal-fired power plant in Nebraska. Unfortunately, the agency is only getting started. In the near term, EPA is poised to act in Wyoming, Minnesota, Arizona, Utah, and Arkansas. Its real goal is to impose another costly regulation on electric utilities and force them to shut down their coal-fired generating units. Ultimately, all states could be subject to EPA’s Regional Haze power grab.