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Luis Martinez’s Blog

North Carolina Has a Choice on Climate

Luis Martinez

Posted November 14, 2013 in Solving Global Warming

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This morning the United States House Committee on Energy and Commerce Subcommittee on Energy and Power is holding a hearing on a discussion draft of a bill that would block the US Environmental Protection Agency (EPA) safeguards on carbon pollution.  As my colleague Dave Hawkins states in his Congressional testimony, the draft legislation proposed by Rep Ed. Whitfield (R-KY) and Sen. Joe Manchin (D-WVA) would “repeal EPA’s authority to implement standards for carbon dioxide (CO2) and other greenhouse gas pollutants from existing fossil-fueled power plants and effectively allow the power sector to dictate the terms of any such standards for new coal-fueled power plants.”

Among those testifying at the hearing will be a representative from North Carolina’s own Dr. Donald R. van der Vaart from the Department of Environment and Natural Resources.  As we can see from his testimony, he challenges EPA’s legal authority to issue carbon pollution standards under current law, echoing legal arguments being made by the coal industry and the hard line coal-powered wing of the power industry.  This seems to continue a recent turn in the policy of the state to a head-in-the-sand approach to climate change and carbon pollution. This is a disappointment, since as NRDC and others have written before, North Carolina is actually a regional and national leader in the area of cleaner energy, which is one of the best performing sectors of the state’s economy.  When EPA moves forward implementing pollution controls on carbon emissions, spurring the transition towards clean energy, North Carolina will benefit from all the steps the state has already taken.  As far as we see it, North Carolinians have a choice:  We can move forward on the great progress made in the state, or we can try to turn backwards to 19th century technologies.

Van der Vaart raises three arguments for why, in his opinion, EPA cannot move forward with carbon limits.  Since all three issues are ones which NRDC has already addressed, we’ll run quickly through them here.

First, he claims that the New Source Performance Standard for carbon pollution cannot consider carbon capture and storage (CCS) as a technology that is “adequately demonstrated” because power plants in the US aren’t using the technology currently.  The Clean Air Act, however, is intended to drive technology improvements, and the courts have consistently upheld standards that require improvements on past practice.  Moreover, Southern Company is currently building a large lignite coal plant in Kemper County, Mississippi that is integrating CCS.  Here’s what my colleague David Hawkins has written on the matter:

EPA found that CCS is technically ready for use on any new coal plants that may be built.  EPA’s lengthy regulatory technical support document cites ample industrial experience demonstrating the technology works on a long-term basis.  EPA also cited the Kemper project and several other recent coal plant projects, as evidence that the power industry itself regards CCS as sufficiently demonstrated to include the technology in billion-dollar-plus commercial coal plant projects.  Southern Company, the owner of the Kemper project, agrees that CCS is adequately demonstrated for use.  It has plans to license its CCS system to other power companies and Randall Rush, Southern’s General Manager of Gasification Technology, is quoted as confirming last month at a Washington, DC energy conference, that their CCS system is “technically ready.”

Van der Vaart also states that “[t]he plain language of the Act as well as legal precedent precludes EPA and States from designing a standard that relies on reductions made outside of the emissions unit.”  Presumably he’s advocating for a ‘source based’ (unit-specific) approach versus a ‘system based approach’.  He doesn’t cite what “plain language of the Act” he’s referring to nor tell us what “legal precedent” he’s talking about.  Indeed EPA can do either and my colleague David Doniger, who has written extensively on EPA’s legal authority to regulate carbon emissions, explains why in extensive detail and concludes that:

The EPA has the legal authority and discretion to adopt a system-based approach to setting carbon pollution standards for existing power plants under Section 111(d) of the Clean Air Act. Performance standards encouraging the full array of measures that have the potential to reduce carbon pollution from the electricity system will achieve the greatest emission reductions at the lowest cost. Such a system-based approach represents the best system of emission reductions that has been adequately demonstrated and is therefore required under the Clean Air Act. (Questions and Answers on the EPA’s Legal Authority to Set “System Based” Carbon Pollution Standards for Existing Power Plants under Clean Air Act Section 111d)

Finally, he and many others in opposition to carbon safeguards, are making a technical legal argument that the section under which EPA will regulate this pollution is not applicable because it conflicts with another section in the Clean Air Act.  This issue has also been addressed by my colleagues Ben Longstreth in his blog “Grasping At Straws”.  I won’t run through the technical legal explanations, you can read them in the blog, but the conclusion is that this argument “in no way blocks EPA from setting carbon pollution standards for existing power plants.”

Ultimately, carbon pollution will be regulated in the state and elsewhere.  North Carolina can continue the work underway and position our economy to take advantage of the changes or we dig in our heels, stop the progress and wait.  The choice is ours.

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Switchboard is the staff blog of the Natural Resources Defense Council, the nation’s most effective environmental group. For more about our work, including in-depth policy documents, action alerts and ways you can contribute, visit NRDC.org.

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