EPA Opposes Motion for Extension of Time for NSPS Briefing

Posted on December 23, 2016 by Jessica Bell

EPA recently filed its opposition to state and industry petitioners’ motion to extend the briefing schedule in their challenge to EPA’s New Source Performance Standards (NSPS) for new power plants.  Petitioners had argued that “[a] short extension of time will allow the parties the opportunity to determine whether an alternative resolution of the petition can be achieved in the new administration.”

EPA argues that petitioners “fall far short” of meeting the “demanding standard for granting extensions arising after argument has been calendared.”  EPA points out that it is wholly speculative whether an extension might further judicial economy, and “guesswork that a new Administrator will even have been confirmed” by the new date petitioners propose.  EPA also notes the lengthy process involved in an agency action to reconsider or revise a rule—development of a proposal, solicitation of public comment, and preparation and promulgation of a final rule.  EPA additionally notes that petitioners “have known for months—and indeed proposed—that their reply briefs would come due the day before the Inauguration of a new president.”

Other recent filings in this case include:

  • Carbon Capture and Storage Scientists’ amicus brief in support of EPA,
  • Technological Innovation Experts’ amicus brief in support of EPA,
  • Institute for Policy Integrity’s amicus brief in support of EPA,
  • Saskatchewan Power Corporation’s (operator of Boundary Dam) amicus brief in support of EPA,
  • Environmental and Public Health Organizations’ intervenor brief in support of EPA,
  • States’ and Municipals’ intervenor brief in support of EPA, and
  • Power Companies’ intervenor brief in support of EPA.
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Opening Briefs Filed in NSPS, MATS Litigation

Posted on December 22, 2016 by Jessica Bell

On December 14, EPA filed its initial brief in North Dakota v. EPA, the challenge to EPA’s New Source Performance Standards (NSPS) for new power plants.  Issues include EPA’s determinations regarding the viability and cost of carbon capture and storage and the achievability of the standards in the final rule, as well as EPA’s election to regulate CO2 emissions from new power plants under Section 111 of the Clean Air Act.  Other recent activity in this case includes an order setting oral argument for April 17, 2017, and a motion from petitioners to extend the briefing schedule (without modifying the April 17 date for oral argument).

In the state and industry challenge to the Mercury and Air Toxics Standards (MATS), Murray Energy Corp. v. EPA, petitioners filed their opening brief last month.  Challenges include whether EPA’s finding that the regulation is appropriate and necessary if it is affordable for industry as a whole is lawful, whether EPA’s benefit-cost analysis is lawful, and whether EPA erred in its consideration of alternative strategies.  The Cato Institute also filed a brief as an amicus in support of petitioners.  According to the court’s briefing schedule, EPA’s brief is due January 19, 2017.  There are numerous intervenors in support of EPA in this case, and their brief is due February 10.

Briefing is also underway in ARIPPA v. EPA, a consolidated challenge by ARIPPA (a generation trade association), Utility Air Regulatory Group, and several environmental groups regarding EPA’s April 2015 denial of reconsideration of the MATS rule.  In their opening brief Industry petitioners challenge EPA’s denials of their petitions presenting data that they argue was impracticable to submit during the comment period but go to EPA’s “appropriate and necessary” determination.  Environmental petitioners challenge in their opening brief EPA’s refusal to reconsider the particulate standard for existing coal-fired power plants.

These two MATS-related cases, ARIPPA and Murray Energy, are being coordinated for argument before the same panel on the same day.

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U.S. and Canada Coordinate on Grid Security; FERC Releases Reliability Primer

Posted on December 20, 2016 by Jeff Bayne

Two noteworthy documents addressing grid security and reliability came out earlier this month.  The United States and Canada announced the Joint United States-Canada Electric Grid Security and Resilience Strategy (Joint Strategy), which outlines the two countries’ goals and plans to enhance the security and resilience of the North American electric grid.  The United States and Canada have highly integrated grids with dozens of points of interconnection, and each country is dependent on the other’s infrastructure.

The Joint Strategy focuses on three primary goals and outlines the two countries’ plans to pursue these goals.  The first goal is protecting the electric grid and enhancing preparedness.  The Joint Strategy emphasizes coordination and information sharing among the private sector and the various levels of government responsible for parts of the grid.  Second is managing contingencies and enhancing response and recovery efforts, for which the Joint Strategy sets out a plan for both physical and cyber mutual assistance between Canada and the United States.  Finally, the Joint Strategy outlines the two countries’ goal of building a more secure and resilient future electric grid, by adapting to growing levels of intermittent renewable resources, energy storage, and distributed energy resources, as well as by responding to cybersecurity threats.

FERC has released a Reliability Primer.  This primer provides an overview of FERC’s role in ensuring electric reliability.  The Energy Policy Act of 2005 added a new section to the Federal Power Act on electric reliability and tasked FERC with approving reliability standards and enforcing compliance.  The reliability provisions apply to many entities, including those excluded from most of FERC’s economic regulations, such as federal power agencies, municipal utilities, and rural electric cooperatives.

FERC sees reliability as a broad term encompassing everything from tree trimming to cybersecurity.  The Reliability Primer describes of the fourteen categories in which Reliability Standards are grouped, including Critical Infrastructure Protection; Emergency Preparedness and Operations; Facilities Design, Connections, and Maintenance; and Transmission Planning.  The primer also describes the monitoring programs of the North American Electric Reliability Corporation (NERC) and various regional entities.

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CPP Model Rules are in the Next Administration’s Bucket to Complete (or Scrap)

Posted on December 19, 2016 by Anjali Patel

When EPA submitted its Clean Power Plan Model Trading Rules to the White House Office of Management and Budget for interagency review on November 3, 2016, it was widely expected that the rules would be finalized before the end of the year.  But that will not be the case.  EPA announced today that it has withdrawn the rules from interagency review and is making the draft preamble and regulatory text available to the public, stakeholders and states.  EPA is also providing:

In releasing the draft documents, EPA clarifies that they are deliberative documents—not final agency action—and have no legal force or effect.  Although EPA was “not required to release [the documents] at this point in the process, [it] thought it appropriate to provide the public with [its] work to date on these topics.”  Specifically, EPA states that it

ha[s] been developing these materials in significant part in response to requests made to the EPA by a number of states and stakeholders over the past year for information that could assist them in pursuing actions – some pertinent to the CPP and others not directly related to the CPP – to address carbon dioxide emissions from the power sector.

EPA also states that it “believe[s] that the work [it] ha[s] done to date can . . . be of assistance to states to the extent they develop their own programs for their own purposes.”

The reasons for EPA’s decision to withdraw the model trading rule from interagency review were not stated.  Had EPA continued on the path to finalizing the rule, however, it is unlikely that all of the steps needed to conclude the rulemaking would have been completed prior to the administration change.  Given the uncertainties associated with that change (including with respect to the fate of the Clean Power Plan), EPA may have acted now to ensure the availability of information that the Agency perceives has a potential value to individual states and stakeholders.

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EPA Finalizes Revisions to Regional Haze Rule

Posted on December 15, 2016 by Anjali Patel

UPDATED 7.25.2018 The presentation from the webinar can be found here.

Yesterday, December 14, 2016, the EPA issued final revisions to the Regional Haze Rule largely adopting the revisions it had proposed in the spring.  The Regional Haze Rule requires states to periodically submit plans to protect visibility in national parks and wilderness areas by curbing haze-producing air emissions from anthropogenic sources, such as power plants.  The revisions address the second planning period which runs until 2028.  (The first planning period ran from 2008-2018.)

Among the changes adopted, EPA:

  • Extends the due date for the next periodic comprehensive State implementation plan (SIP) revisions from July 31, 2018, to July 31, 2021 to allow states and tribes to consider and integrate compliance planning for other air emission regulatory programs (e.g. MATS, Clean Power Plan, etc.);
  • Revises the second planning period interim report due dates;
  • Removes the requirement that progress reports take the form of SIP revisions thereby also eliminating EPA’s formal approval or disapproval of such reports;
  • Modifies the set of days used to track progress towards natural visibility conditions to control for non-anthropogenic causes of haze has such as wildfires and dust storms;
  • Allows states to propose and the Administrator to authorize an adjustment to a state’s  uniform rate of progress (URP) to address impacts on visibility from anthropogenic sources outside the U.S.; and
  • Requires that states respond to a Federal Land Manager (FLM)’s certification of reasonably attributable visibility impairment certification within three years and that FLMs consult with states prior to making such a certification.

A fact sheet on the rule can be found here.

On Tuesday, January 10, 2017, EPA will be holding an informational webinar [link eliminated] from 12:30-2:00 PM Eastern to discuss the final revisions.

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