U.S. Chamber slams EPA’s ‘sue and settle’ method of imposing haze rule

The U.S. Environmental Protection Agency is “usurping” state authority to manage their congressionally delegated regional haze programs, with this EPA takeover to cost states millions of dollars to implement with no discernible enhancement of visibility, said the U.S. Chamber of Commerce July 13 in releasing a new report.

The chamber commissioned this report, authored by William Yeatman, to illustrate how a regulatory tool known as “sue and settle rulemaking” is being employed by the EPA to force states to relinquish their authority and accept EPA’s plans. Those EPA plans are much costlier to implement and increase utility costs for consumers, impacting mostly coal-fired power plants.

“Sue and settle rulemaking” is a tactic where an organization, usually an environmental group in power plant cases like this, sues a federal agency in court to initiate a rulemaking, with the agency then settling behind closed doors. Since the lawsuit is only between the private organization and the federal agency, there is no notice given to the public about the settlement until the agreement is filed with the court, the chamber noted.

“Sue and settle agreements allow EPA to convert a state Regional Haze program into a major new set of federal mandates, with no recourse for those affected until it’s too late,” said Bill Kovacs, the Chamber’s senior vice president for Environment, Technology & Regulatory Affairs. “The report outlines the potentially disastrous effects of this regulatory tool being used by the EPA to disregard states sovereignty and take over what Congress clearly determined to be a state environmental responsibility. These federal haze requirements offer only high costs for states, utilities and consumers, with no benefit.”

“Despite all the publicity for other regulations, one of EPA’s more dubious, and arguably illegal regulatory efforts remains below the radar to many: the Regional Haze rule,” said Yeatman, Assistant Director of the Center for Energy and Environment at the Competitive Enterprise Institute. “EPA is now implementing a program that tramples over states’ authority. In the long term, EPA’s abuse of its Regional Haze authority could present a persistent problem for all states. With the EPA poised to impose similar constraints on several other states in the immediate future, it’s clear that no state is immune from having its rightful Regional Haze authority trumped by EPA at profound costs for virtually nonexistent benefits.”

Among the key findings from the eight state case studies detailed in the report:

  • In Arizona, EPA’s Regional Haze regulation threatens to increase the cost of water would force the state to spend an additional $90.2m per year to implement the federal regulation.
  • In Montana, EPA’s proposed Regional Haze controls are almost 250% more expensive than what the agency’s standing rules presume to be “cost effective” for Regional Haze compliance.
  • In 2011, the report said EPA disregarded New Mexico’s submitted Regional Haze plan and imposed a federal plan that requires nearly $840m more in capital costs. According to the operators of the coal-fired San Juan power plant, EPA’s plan would raise utility bills for each household in New Mexico by $120 annually.
  • Although North Dakota is one of only 12 states that achieves all of EPA’s air quality standards for public health, it would not be able to achieve EPA’s Regional Haze goals for visibility improvement even if all industry in the state shut down, the report said. In addition, EPA’s proposed plan would cost North Dakota nearly $13m per year.
  • Refusing to approve Oklahoma’s Regional Haze plan, the EPA’s plan would cost the state $282m per year.
  • In Wyoming, the EPA proposed a Federal Implementation Plan that would cost almost $96m more per year than the state’s plan.
  • Minnesota is subject to back-to-back Regional Haze regulations, where EPA is claiming authority to regulate regional haze twice in succession at the coal-fired Sherburne County power plant.
  • EPA’s proposed plan would cost Nebraska almost $24m per year to achieve “benefits” that are invisible, the chamber said.
About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.