EPA Proposes to Repeal the Clean Power Plan

Posted on October 10, 2017 by Jeff Bayne

UPDATED 11.14.2017 The proposed repeal of the Clean Power Plan has been published in the Federal Register, 82 Fed. Reg 48,035.  In addition, an extension of the comment deadline has been published in the Federal Register, 82 Fed. Reg. 51,787.  The new comment deadline is January 16, 2018. 

Today the Environmental Protection Agency (EPA) took the long anticipated step of proposing to repeal the Clean Power Plan promulgated by the Obama Administration.  EPA also issued a press release and a fact sheet describing the proposed repeal.  President Trump’s Executive Order on energy and environmental policy, issued at the end of March, specifically instructed the EPA Administrator to reconsider the Clean Power Plan.

In its announcement today, EPA states that the Clean Power Plan is inconsistent with Section 111 of the Clean Air Act because it sets carbon dioxide emission guidelines for existing power plants that, realistically, can be satisfied only if power generators engage in generation-shifting (such as replacing fossil fuel generation with renewable resources).  According to the proposed rule, the Clean Air Act only authorizes EPA to issue emission guidelines for existing sources that reflect the “best system of emission reduction” that can be applied to or at a single source.

EPA estimates that the proposed repeal of the Clean Power Plan could provide up to $33 billion in avoided compliance costs in 2030.  It also noted its disagreement with the Obama Administration’s analysis of the costs and benefits associated with the Clean Power Plan, and it has issued a Regulatory Impact Analysis setting forth its new cost-benefit technical analysis.

In today’s announcement, EPA states that it has not yet determined whether it will promulgate a different rule under Section 111(d) of the Clean Air Act to regulate greenhouse gas emissions from electric utility generating units.  However, it is planning to issue an Advanced Notice of Proposed Rulemaking in the near future to solicit comments on systems of emission reductions that are applicable at and to an individual source.

Comments on EPA’s proposal to repeal the Clean Power Plan will be due sixty days after the proposed rule’s publication in the Federal Register.

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EPA Seeks Comments on Draft Strategic Plan

Posted on October 5, 2017 by Anjali Patel

EPA issued a notice in today’s Federal Register announcing that it has released a draft of its FY 2018-2022 Strategic Plan (Draft Plan) for public comment. EPA explains that it is required to revise its previous Strategic Plan under the Government Performance and Results Act (GPRA) Modernization Act of 2010.  The GPRA Modernization Act requires, among other things, that agency heads make available to the public their agency’s 4-year strategic plan. Pursuant to this Act, Trump’s agency heads will need to post their plans by Feb. 5, 2018.

In its Draft Plan, EPA lays out its three goals, and describes its corresponding objectives and measures under each of those goals. Its goals are to:

  • “Deliver real results to provide Americans with clean air, land, and water.”
  • “Rebalance the power between Washington and the states to create tangible environmental results for the American people;” and
  • “Administer the law, as Congress intended, to refocus the Agency on its statutory obligations under the law.”

EPA further states that it is “in the process of deploying a Lean management system[,] . . . a set of principles and tools designed to identify and eliminate waste from processes while maximizing customer value and return on taxpayer investment.”

Comments on the draft are due on October 31, 2017.

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DOE Proposes Grid Resiliency Pricing Rule

Posted on October 3, 2017 by Jeff Bayne

Last week, DOE proposed that FERC enact rules for FERC-approved Independent System Operators (ISOs) and Regional Transmission Operators (RTOs) to “ensure that certain reliability and resilience attributes of electric generation resources are fully valued.”  The DOE Notice of Proposed Rulemaking (NOPR) focuses on power plants that can withstand major fuel supply disruptions, which it defines as resources “able to provide essential energy and ancillary reliability services and have a 90-day fuel supply on site in the event of supply disruptions caused by emergencies, extreme weather, or natural or man-made disasters.”

The NOPR cites to the recently issued DOE Staff Report on electric markets and reliability, noting that “the DOE Staff Report warns that premature retirement of fuel-secure resources imposes serious risks.”  According to the NOPR, wholesale pricing in RTOs and ISOs “does not adequately consider or accurately value” the resiliency benefits that these fuel-secure generation resources provide.  To address this issue, Secretary Perry directed FERC to issue a rule requiring its organized markets to develop and implement market rules that “accurately price” these resources.

This action was taken pursuant to section 403 of the Department of Energy Organization Act (42 U.S.C. § 7173), which states that FERC “shall consider and take final action on any proposal made by the Secretary [of Energy] . . . in an expeditious manner in accordance with such reasonable time limits as may be set by the Secretary for the completion of action by the Commission on any such proposal.”  Here, Secretary Perry has instructed FERC to take final action within 60 days after the notice is published in the Federal Register.  Any final rule, according to DOE’s proposal, will take affect within 30 days of its publication in the Federal Register, and each ISO and RTO subject to the rule will have to submit a compliance filing within 15 days of the effective date of such a rule.

On October 2, 2017, FERC solicited comments on the proposed rule.  Comments are due by October 23, 2017, and reply comments are due by November 7, 2017.

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Maryland Suit Seeks Ozone Controls for Upwind Coal Plants under the Clean Air Act’s Good Neighbor Provision

Posted on September 28, 2017 by Katherine O'Konski

Yesterday, the State of Maryland filed a complaint in the U.S. District Court for the District of Maryland seeking an order requiring EPA to perform its non-discretionary duty to either approve or deny a petition submitted by the state on November 16, 2016.  That petition asked EPA to find that 36 coal-fired generating units in Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia are violating the Good Neighbor Provision of the Clean Air Act, 42 U.S.C. § 7410(a)(2)(D)(i), by significantly contributing to Maryland’s nonattainment of the 2008 and 2015 revised ozone National Ambient Air Quality Standards (NAAQS).  The Good Neighbor Provision prohibits any source of emissions within a state “from emitting any air pollutant in amounts which will . . . contribute significantly to nonattainment in, or interfere with maintenance by, any other State with response to any such . . . ambient air quality standard.”

Despite Maryland’s local ozone controls regulating power plants, factories, and motor vehicles, EPA has designated three nonattainment areas in Maryland under the 2008 Ozone NAAQS.  The state anticipates that it will remain in nonattainment once EPA completes its designations for the revised 2015 ozone NAAQS.  Maryland argues that at least half of the state’s ozone pollution is caused by the transport of pollutants from upwind states, and that these transported pollutants significantly contribute to Maryland’s nonattainment.  The November 2016 petition alleged that, for a variety of reasons, including state regulation, the identified 36 identified generators “have not needed to run their controls efficiently on many bad ozone days,” resulting in emissions that contribute to Maryland’s nonattainment.  The petition also argued that ozone emissions from the 36 generating units can be reduced at reasonable cost by requiring them to run existing control equipment in a manner consistent with the manufacturer’s specifications on days when ozone reductions are needed.

Although the Clean Air Act required EPA to act on Maryland’s petition within 60 days, 42 U.S.C. § 7426(b), EPA issued a rule on January 3, 2017 extending the deadline for action on Maryland’s petition until July 15, 2017.  When EPA failed to act by July 15, Maryland notified EPA and EPA Administrator Pruitt of its intention to commence a suit for the agency’s failure to timely act on Maryland’s petition.  Yesterday’s complaint notes that EPA has yet to take action on the 2016 petition.

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EPA Moves to Hold Coal Ash Rule in Abeyance and to Continue Oral Argument

Posted on September 26, 2017 by Katherine O'Konski

Last week, EPA filed a motion asking the D.C. Circuit to postpone oral argument scheduled for October 17 in Utility Solid Waste Activities Group v. EPA, Docket No. 15-1219, the litigation surrounding its Coal Ash Rule.  EPA also moved to hold all proceedings related to the rule in abeyance for 120 days, after which it proposed to report to the court on which portions of the rule it intends to reconsider through further rulemaking.  Although EPA has not yet decided to initiate rulemaking proceedings to rescind or revise any portion of the rule, it argued that an abeyance was necessary to allow the agency to undertake a careful review of the rule in response to two petitions for administrative reconsideration submitted by industry groups, and as a result of the passage of the Water Infrastructure Improvements for the Nation (WIIN) Act in December 2016.  The Act provides EPA with authority to approve state coal ash permit programs to operate in lieu of the federal Coal Ash Rule if the state programs are at least as protective as the federal rule.

A group of Environmental Petitioners* have opposed EPA’s motion, arguing that EPA failed to demonstrate the extraordinary cause required for a court to postpone oral argument.  The Environmental Petitioners also argue that the WIIN Act did not make changes to the fundamental statutory standard governing the Coal Ash Rule, and since the rule is “the baseline against which a proposed state permitting program must be measured, [its] legality . . .  remains of central relevance to any state programs as well as in those states where federal requirements apply.”

The D.C. Circuit has not yet ruled on EPA’s motion.

 

* Environmental Petitioners include Clean Water Action, Environmental Integrity Project, Hoosier Environmental Council, PennEnvironment, Prairie Rivers Network, Sierra Club, Tennessee Clean Water Network, Waterkeeper Alliance, and Comité Dialogo Ambiental, Inc.

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