Attorneys General say EPA’s greenhouse plans exceed its authority

An Obama Administration proposal on greenhouse gas limits for power plants, which is due to be released any day now, continues to provoke negative comments from a number of parties.

On Sept. 13, House Energy and Commerce Subcommittee on Energy and Power Subcommittee Chairman Ed Whitfield, R-Ky., released a white paper by the Attorneys General from seventeen states and one senior environmental regulator relating to the U.S. Environmental Protection Agency’s planned new regulations for existing electricity power plants, which would have their greatest impacts on coal-fired facilities. 

The states involved tend to be heavy users of coal power. The coalition of Attorneys General expressed concern about whether in developing and implementing these regulations the EPA will adhere to the limitations of its authority under the Clean Air Act. 

“The Obama Administration continues to unilaterally bypass the role of the states, while stifling job creation by eliminating affordable energy through new regulations that will only be another blow to our fragile economy,” said Whitfield. “The most frustrating part is the Administration is doing this with no public debate, and many in the United States Congress and individual states have been expressing deep concern about the impact that this will have on our ability to remain competitive in the global marketplace.”

As set forth in the white paper, sent to EPA Administrator Gina McCarthy: “EPA’s authority under the Clean Air Act is limited to developing a procedure for states to establish emissions standards for existing sources [such as existing coal-fired power plants].”

Like Whitfield, the Attorneys General express concern over the impact that emissions standards on existing plants will have on the economy. They state that: “The elimination of coal as a fuel for new electric generation would have highly concerning implications for electricity prices and for the economy and job-creation in general, as well as the competitiveness of American manufacturing.”

On Sept. 18, Whitfield’s subcommittee will hold a hearing on the President’s climate change agenda. The subcommittee is seeking information and testimony regarding the Administration’s current and planned climate change activities, including standards for new and existing power plants. Whitfield is also seeking information regarding the impact that the President’s climate change agenda will have on states, the economy and job creation.

Said the white paper: “The President has called upon EPA to propose greenhouse gas (GHG) emission standards, regulations, or guidelines for existing power plants by June 1, 2014, and to finalize those rules by June 1, 2015. As this paper will show, EPA’s authority under the Clean Air Act is limited to developing a procedure for states to establish emissions standards for existing sources. EPA, if unchecked, will continue to implement regulations which far exceed its statutory authority to the detriment of the States, in whom Congress has vested authority under the Clean Air Act, and whose citizenry and industries will ultimately pay the price of these costly and ineffective regulations.”

Last year, EPA published a proposed rule regulating CO2 emissions from new electric utility generating units (EGUs), the white paper noted. “In light of recent comments from industry, EPA is considering the need to repropose this standard due to its failure to finalize the action within the CAA’s 1-year timeframe. In addition, on April 15 and 17, 2013, some states and environmental groups filed 60- and 180-day Notices of Intent to sue EPA under section 304(a) of the Clean Air Act (‘CAA’) for failure to perform the allegedly non-discretionary duty of and/or unreasonably delaying finalizing the EGU NSPS and proposing standards for existing EGUs. In response to these Notices, a coalition of Attorneys General has requested to be involved in any settlement discussions with advocates of broad federal GHG regulations.”

The AGs added: “The prospect for EPA adoption of GHG performance standards for new or existing coal-based EGUs raises serious concerns. EPA’s aggressive standards for new coal-based EGUs indicate a similarly aggressive approach to existing coal-based EGUs. While EPA is authorized to require States to submit plans containing performance standards, EPA may not dictate what those performance standards shall be. Nor may EPA require States to adopt GHG performance standards that are not based on adequately demonstrated technology or that mandate, in the guise of ‘flexible approaches,’ the retirement or reduced operation of still-viable coal-based EGUs.”

AGs that signed the letter are from states that include Kentucky, Oklahoma, Nebraska, Florida, Montana, Michigan, West Virginia and Ohio.

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.