West Virginia Attorney General Patrick Morrisey, nineteen other state attorneys general, and the head of the Mississippi Department of Environmental Quality recently filed a superb comment letter on the Environmental Protection Agency’s advance notice of proposed rulemaking entitled “State Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units.” The notice requests information on a potential replacement rule for the so-called Clean Power Plan, which the Environmental Protection Agency plans to repeal.
Morrisey et al. argue that the EPA should just repeal and not replace the Clean Power Plan with alternative carbon dioxide emission guidelines for existing power plants. The Obama-era Environmental Protection Agency promulgated the Clean Power Plan under section 111(d) of the Clean Air Act. That provision excludes from its regulatory purview “any air pollutant . . . emitted by a source category regulated under Clean Air Act section 112.” Coal power plants have been regulated as section 112 source categories since 2012. Thus, the Clean Power Plan is unlawful under the very provision that purportedly authorizes it. Any Clean Power Plan replacement rule would be unlawful for the same reason.
Rather than mount a detailed defense of the Section 112 Exclusion, as my notice comment letter does, Morrisey et al. provide detailed information on the principles the EPA should follow if it decides to move forward with a new section 111(d) rule. In the process, they provide what is perhaps the best available summary of the Clean Power Plan’s many legal flaws, including that it:
(1) unlawfully assumes authority to establish national performance rates setting the minimum performance standards any state may impose;
(2) unlawfully invades states’ traditional zone of authority to manage the mix of electricity generation within their own borders;
(3) unlawfully presumes state implementation plans are invalid if they depart from EPA’s emission guidelines;
(4) unlawfully conflates “source” with source “owners” and “operators” in order to compel the latter to invest in, purchase power from, or cede market share to lower-emitting facilities;
(5) unlawfully blurs Congress’s careful distinction “between control programs focused on an individual source’s performance and air quality programs designed to improve air quality by reducing a source category’s total emissions”; and
(6) unlawfully abandons the EPA’s decades-long practice of focusing on standards of performance achievable by individual sources.
Morrisey et al. argue that any “best system of emission reduction” used to establish emission performance guidelines in a replacement rule should be based on heat rate (thermal efficiency) improvements. However, they caution that heat rate performance standards should be tailored to the capacity of each facility and not, as in the Clean Power Plan, reflect regional “averages” or assume units can sustain the best efficiency ever achieved for the rest of their useful life.
Finally, the attorneys general argue that a best system of emission reduction should not include carbon capture and sequestration, noting that such systems are not “adequately demonstrated” due to their high cost, technical challenges, and dependence on government subsidies.
They conclude that any Clean Power Plan replacement rule “must be based on a best system of emission reduction that is adequately demonstrated and reflects a degree of emission reduction achievable by individual sources, and must ensure that states retain their traditional authority to manage their power resources.”