EPA's Proposals to Regulate CO2 Emissions From Power Plants
In January 2014, the U.S. Environmental Protection Agency (EPA) reproposed standards of performance regulating carbon dioxide (CO2) emissions from new affected fossil-fuel-fired generating units pursuant to Section 111(b) of the Clean Air Act.
October 2015 | by Robert Harris
Subsequently, in June 2014, EPA issued two new proposed regulations: (i) a standard of performance regulating CO2 emissions from modified and reconstructed fossil-fuel-fired electric generating units, also pursuant to Section 111(b), and (ii) emission guidelines for states to follow in developing CO2 emissions limits for existing fossil-fuel-fired electric generating units pursuant to Section 111(d) of the Clean Air Act.2 The latter proposal has been commonly referred to as EPA's "Clean Power Plan." EPA has received millions of comments on these proposed regulations, which it intends to issue in final form in 2015.
While all of these proposed rules have drawn considerable attention, it is the proposed regulation relating to existing sources that is most controversial. Because there are currently no cost-effective pollution controls that can be installed at existing power plants to reduce CO2 emissions, a proposed emission guideline that limited itself to the "best system of emission reduction" (BSER) on a source-by-source basis would result in minimal real world emission reductions, primarily from improvements in energy efficiency that could be achieved at such plants. EPA therefore has developed a much more ambitious and complex plan to require states to reduce CO2 emissions based on what can be achieved by each state's electrical generating sector.
Whatever one may think of the policy, EPA's ability to promulgate and defend these regulations will depend on whether the D.C. Circuit Court of Appeals and, ultimately, the Supreme Court, believe that EPA is exercising its authority consistent with the terms of a statute, last amended in 1990, that is widely acknowledged not to contemplate the problem of climate change caused by the emission of greenhouse gases (GHGs).