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Top Ten Legal Questions and Answers on Carbon Pollution Standards for Existing Power Plants

David Doniger

Posted October 18, 2013

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Now that the government shutdown is over, EPA is back on the job to carry out President Obama’s Climate Action Plan.  The central pillar of that plan is using the Clean Air Act to set the carbon pollution standards for new and existing power plants.  Power plants are the nation’s largest source of the heat-trapping pollution that drives dangerous climate change, and there are no federal limits on their carbon pollution today.

In December 2012, NRDC proposed a flexible, “system based” plan for cutting dangerous carbon pollution from the nation’s existing power plants. Our proposal responds to the urgent threat of climate change and offers overwhelming benefits at reasonable cost. Using the same power sector modeling tools used by the EPA and the power industry, NRDC projects that our plan will achieve a 26 percent reduction in power sector CO2 emissions by 2020, compared with 2005 levels, with climate protection and public health benefits worth $26 to 60 billion in 2020, at a reasonable cost of $4 billion.

EPA has launched an extensive outreach process to gather input from states and other stakeholders on how to cut power plant carbon pollution in the most environmentally beneficial and cost-effective way.  The agency is holding nearly a dozen listening sessions across the country, starting next week.

Many people have asked good questions about EPA’s authority to set these standards under Section 111(d) of the Clean Air Act.  So we’ve compiled a top ten list of questions and answers.  I’ll list the questions below, and you can find the answers – or at least NRDC’s answers – here.  Readers up for an extra challenge can write their own answers first, and then compare them with ours. 

So here are our top ten legal questions concerning power plant standards under Section 111(d):

  1. What Is Section 111 of the Clean Air Act?
  2. What is a system-based approach?
  3. Does the Clean Air Act authorize the EPA to employ a system-based approach in its emissions guidelines for existing power plants?
  4. May a system-based approach include compliance options based on actions beyond those implemented at affected power plants (i.e., credits for non-emitting generation or demand-side efficiency)?
  5. How would a system-based approach affect the stringency of the standard of performance?
  6. Is the EPA required to set separate standards of performance for existing EGUs burning different fuels?
  7. May the EPA’s emissions guideline require different standards of performance from state to state?
  8. How does a system-based standard take into account “remaining useful life”? 
  9. What criteria should the EPA set for approving alternative state plans?
  10. Should the EPA establish “standby” federal plans?

Now, no looking at your neighbors’ answers!  Put your head down on your desk when you are done. 

You can check your answers against ours here.

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Michael BerndtsonOct 18 2013 09:24 PM

This is great stuff. Keep it coming. I'll take the test - but will look up the answers.

Anti regulation has become such a rallying cry by most on the right that people don't realize how much regulation as rules of the game can benefit everyone. I was watching PBS Newshour last night. One of the panel members was a dude from the American Enterprise Institute and University of Colorado named Steven Hayward. The topic was on the shutdown/restart of the government. Hayward blathered on with jowly confidence that the problem with the economy wasn't the tea party shenanigans, but regulations that are strangling our economy and real American's freedom. Yes, the old "regulations suck and Obama is a socialists" mantra was given to the compliant PBS host - even after a frigging failed tea party coup. His points were then parroted by others the next day on blogs and TV. This message is what about 75 percent of the country only hears.

This same anti regs attitude comes from brilliant conservative corporate lawyers to union heavy equipment operators. That is correct, many of the construction unions are very conservative. They aren't happy with mobile source emissions regulations at all. Many locals are doing well right now with refinery modifications, shale oil and gas and pipeline infrastructure work. This translates to pension funds and votes.

I believe the key people to get on board with any emissions policy program would be plant managers. The plant manager has profit and loss responsibility. The clearer a policy is the happy he/she becomes. (note: even though there's a separation between oil & gas and coal, both industries will be impacted by these regulations, i.e. boilers at refineries.)

Most importantly, many power plants and other stationary sources are in smallish towns. These facilities may be the economic engine and major employer of the area. If the plant manager hates a regulation all the employees will. And then it spreads to spouses, family, friends supporting businesses and so on. NRDC should work with plant managers rather than just corporate environmental managers and attorneys. My guess is that 80 percent of plant manager and staff aren't all that enamored with its own corporate. To a point of course.

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