Reading through the Proposed Affordable Clean Energy Rule. My very early thoughts on the proposal: it is on shaky legal ground and it relies on an outdated understanding of our power system coupled with a depressing lack of ambition to reduce emissions (thread) /1
The legal support for EPA's interpretation that Section 111(d) of the Clean Air Act only allows it to regulate individual power plants comes from a Senate Committee Report from 1970. /2
Senate Committee Report: “[t]he provisions for new source performance standards...are designed to insure [sic] that new stationary sources are designed, built, equipped, operated, and maintained so as to reduce emissions to a minimum.” /3
Senate Committee Report: “[e]mission standards...would be applied to existing stationary sources. However, the Committee recognizes that certain old facilities may use equipment and processes which are not suited to the application of control technology.” /4
These quotes do not definitively support EPA's position- there is still plenty of room for the CPP's approach of regulating existing plants by looking at the power system & considering the amount plants are operating & seeking to address old, highly polluting. facilities /5
EPA tries to cling to the specter of "reliability problems" and references the resilience snafu where FERC voted unanimously to reject DOE's proposal to subsidize to coal and nuclear plants in an attempt to bolster its statements on the importance of coal-fired generation. /6
To justify its focus on coal and avoidance of renewables, it simply states "...while the recent past has shown continued advances in renewable cost and performance, it is not certain that those trends will be sustained." Really? /7
In discussing flexibility- how states may apply "a less stringent standard or final compliance time," it states "EPA understands that many of these 'other factors' that can affect the application of the BSER candidate technologies distill down to a consideration of cost.” /8
It goes on to note that "for some sources, the criteria may result in determining that no measures in the candidate technologies are applicable." It gives two examples: a plant with a short remaining useful life & one that already implemented all of the candidate technologies. /9
For the plant with a short remaining useful life, it proposes "The emission standard would only be applicable if a source did not shut down by the compliance deadline." /10
To summarize: if a plant is not planning to operate much longer- it does not need to meet a new emissions standard if it shuts down before the deadline. /11
For the plant that already implemented all candidate technologies, "EPA would expect...a standard of performance that would reflect an emission rate that is at least as stringent as 'business as usual' for that source without allowing for any backsliding on performance." /12
To summarize: if a plant has already implemented all the technology EPA recommends in this rule, the plant stays at its current level of emissions- 'business as usual'- and is in compliance as long as it doesn't emit more. /13
I am getting to the proposed changes to New Source Review (NSR) now and "EPA is, therefore, inviting comment on whether it is appropriate to consider the costs of NSR compliance in the BSER analysis under section 111(d)...." /14
How might EPA consider the costs of NSR as part of determining the best system of emission reduction given that the costs of NSR depend heavily on the features of an individual facility? /15
New NSR system is proposed to apply to all power plants in the U.S. But EPA is taking comments on whether to narrow the scope and apply the hourly test only to plants that are making modifications to comply with state standards of performance in accordance with the ACE Rule /16
According to EPA's analysis with "varying levels & costs of efficiency improvements (reflecting, in part, the proposed changes to NSR...), total national emissions of CO2 & other pollutants will essentially stay the same or be slightly reduced when compared with a CPP repeal."/17
Next sentence: "While it is possible that some individual units may experience an increase in annual emissions due to increases in operation, it is very difficult to project with confidence at which of the units this would actually occur." 🤨 /18
EPA seems to be crowdsourcing legal research: "Specifically, have there been court decisions since New York I and New York II that can be read to afford EPA more flexibility with respect to its reading of the definition of 'modification' in the context of the NSR program?" /19
Ah, but states do not have to adopt the new NSR approach with the hourly emissions test: "EPA does not intend the NSR hourly emissions test to be a mandatory element of state programs...." /20
"However, state and local permitting authorities that are issuing permits on behalf of EPA under a delegation agreement will be required to apply the NSR hourly emissions test for EGUs, since they would follow the Federal NSR program...." Wait, what? /21
"EPA solicits comment on allowing states this flexibility to adopt the proposed NSR rule changes...." What flexibility? 🧐 Page 137. Any theories? /22
Reading the Regulatory Impact Analysis now: “Some portion of the foregone air quality and health benefits estimated for this rule will occur in areas not attaining the PM2.5 or Ozone NAAQS. This RIA predicts increased levels of PM2.5 and ozone...compared to the base case..." /23
