Several major environmental groups are threatening legal action against U.S. EPA if the Obama administration fails to agree by next week to set greenhouse gas limits for power plants.
The Sierra Club, Natural Resources Defense Council and Environmental Defense Fund wrote a letter last month to EPA Administrator Lisa Jackson, urging the agency to agree to issue New Source Performance Standards -- which set baseline emission limits for new and existing sources -- to curb the heat-trapping emissions from electric utilities. The sector accounts for about one-third of total U.S. greenhouse gas emissions.
A federal appeals court remanded EPA's performance standards for power plants in 2007 after environmentalists, states and local governments challenged the agency's failure to set carbon dioxide limits for the sector in the wake of the Supreme Court's 2007 ruling in Massachusetts v. EPA. That ruling declared carbon dioxide a pollutant subject to Clean Air Act regulation.
"While the court did not establish a deadline for EPA to act on the remand order, three years is unwarranted, especially since the agency has not even begun to undertake action to comply," the environmental groups wrote last month.
The environmentalists are asking EPA to agree by no later than Sept. 15 to include greenhouse gases in its performance standards for power plants and to coordinate the measures with another rulemaking limiting air toxics from utility boilers. That rule -- slated to be finalized in November 2011 -- will replace the George W. Bush administration's Clean Air Mercury Rule, which was tossed out by a federal appeals court in 2008.
"Barring agreement by September 15th, our remaining recourse will need to be seeking a court order compelling EPA action on the 2007 remand order," the groups wrote.
EPA spokesman Brendan Gilfillan said the agency has received the letter and will respond accordingly.
The challenge marks part of a broader effort by environmentalists to prod EPA to strengthen federal climate regulations now that climate legislation is not expected to clear Congress this year. Advocates are pressing the agency to set strict requirements for stationary sources using both performance standards and the Clean Air Act's New Source Review program, which applies to new and modified sources (Greenwire, Aug. 25).
EPA is expected to soon issue guidance to states detailing how sources must control their emissions under the NSR program, which will require facilities to install "best available control technology" to limit greenhouse gases beginning January. The agency has not yet addressed greenhouse gases in performance standards for industrial sources but has signaled that it intends to do so.
Last month, EPA issued performance standards for the cement industry -- the country's third-largest source of CO2 emissions -- but punted on the greenhouse gas issue. EPA said the final rule did not include a performance standard for greenhouse gases because the agency does not have adequate information to set a standard. However, EPA said it is "working towards a proposal for GHG standards" from cement facilities and will soon be sending out requests for more information.
Jeff Holmstead, an industry attorney and former EPA air chief under the George W. Bush administration, said he expects the Obama EPA to begin to issue performance standards for greenhouse gases, but he doubts that the limits will achieve the reductions that environmentalists are seeking.
"There's this idea that if EPA just regulates under the Clean Air Act, then that will get us the reductions that we need," he said. But because the limits are based on available control technologies, "I think they can get some modest emission reductions, but I don't think it will be anywhere near what people have said is necessary and what the environmental community expects," he said.
Holmstead also said he does not expect EPA to coordinate greenhouse gas performance standards and air toxics standards for power plants. EPA is under a consent agreement to issue draft air toxics standards by next March and final rules by November 2011.
"It will be a difficult debate within EPA and then within the administration," Holmstead said of the performance standards. "And EPA -- although they've done really an incredible number of things in the president's first 18 months -- I just don't think that they will be able to pull together all of the technical information and analysis and everything else that they need to really launch out on a whole new frontier of regulation."
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