U.S. EPA released proposed rules today for smog and soot-forming emissions from power plants, setting up the start of a rulemaking process that could influence Senate negotiations on an energy and climate bill.
Cleared by the White House Office of Management and Budget last week, the program announced today by EPA air chief Gina McCarthy would supersede the Clean Air Interstate Rule, a George W. Bush-era program that capped emissions of sulfur dioxide (SO2) and nitrogen oxides (NOx) from power plants. Those pollutants are frequently carried by air currents, accumulating in the northeastern United States and making it more difficult for those "tailpipe" states to meet air quality standards.
Though the "transport" rule could have teeth on its own, experts say, it could also suffer the same legal fate as its predecessor, which was struck down in 2008 by U.S. Circuit Court of Appeals for the District of Columbia. The court's unusually acerbic decision described the program as "fundamentally flawed," saying it failed to "connect states' emissions reductions to any measure of their own significant contributions."
With both industry groups and public health advocates seeking a measure of certainty, the release of the CAIR replacement rule could prod the Senate to get moving on legislation.
One likely option would be a proposal from Sens. Tom Carper (D-Del.) and Lamar Alexander (R-Tenn.) that would codify a cap-and-trade program for SO2, NOx and mercury. The three-pollutant bill (S. 2995) aims to slash power plants' S02 emissions 80 percent by 2018 while achieving a 50 percent reduction in NOx emissions and a 90 percent reduction in mercury emissions by 2015.
Carper has said he would seek a markup of his bill after EPA rolls out its draft CAIR replacement rule and its modeling of his legislation, which is also expected to be released soon (E&ENews PM, April 20).
The senator may try to include the three-pollutant bill in a comprehensive climate and energy bill, though Carper would also move forward with stand-alone legislation if the votes do not appear to be there for the climate and energy bill, according to a Senate aide familiar with the proposal.
"If climate's not moving, then we have options to put it on something else," the aide said. "If we have the votes to run it on its own, we'll run it on its own."
Carper's staff has talked to Sen. Jeff Bingaman (D-N.M.) about including the three-pollutant bill in a climate measure aimed at capping greenhouse gas emissions from only the utility sector, the aide said. Bingaman's draft bill represents a narrower approach to an economywide cap-and-trade system and is among the options Senate leadership is considering as it prepares for a floor debate on climate and energy legislation later this month.
"I know that they're interested," the aide said of Bingaman's office, adding that Carper has also talked to other co-sponsors of Senate climate proposals, including Sens. John Kerry (D-Mass.), Joe Lieberman (I-Conn.) and Barbara Boxer (D-Calif.).
With a utility-only approach gaining steam in the Senate, codifying limits on power plant emissions that contribute to smog and soot could help broker a deal. But because SO2 and NOx are detached from energy and climate issues, public health groups are concerned that rollbacks in EPA's rules would end up being used as incentives to get utilities on board, said Frank O'Donnell, president of Clean Air Watch.
"It would be the height of folly to weaken public health regulations for a weak climate bill," O'Donnell said. "There is potential benefit to legislation if it's good legislation. Senator Carper has come up with good legislation, and we support that quite aggressively, but as we've learned in other battles, it's not always easy to get from Point A to enactment."
States want more
States have pushed for a tighter cap on NOx in particular, feeling that the Carper-Alexander bill and EPA's proposed rules would both be "insufficient for resolving the pervasive ozone problems throughout the East," said Bill Becker, executive director of the National Association of Clean Air Agencies.
Environmental officials representing New York and Maryland met with Senate Environment and Public Works Committee staffers last month, urging them to tighten the NOx cap to 900 million tons by 2014. They said the CAIR replacement was the right way to limit emissions because reductions at coal plants would cost a fraction of the cost of reductions at other facilities (Greenwire, June 25).
Becker said today he was disappointed with the agency's decision to base the NOx limits on the 1997 primary ozone standard of 84 parts per billion (ppb) rather than the George W. Bush-era ozone standard of 75 ppb. That 2008 standard is now being reconsidered by the Obama administration, which wants to revise the limit to between 60 and 70 ppb averaged over an eight-hour period.
"It is essential that EPA quickly rectify this when it publishes its second transport rule," Becker said. "While we are encouraged that EPA recognizes the urgency of finalizing the second transport rule in 2012, it is critical that they maintain this schedule, especially since states' mandates ... depend upon the timeliness of the agency's rulemaking."
Reporter Robin Bravender contributed.