Comments on New Source Performance Standards for Greenhouse Gas Emissions from New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units
In striking down the Clean Power Plan, the Supreme Court taught that EPA cannot use Section 111 of the Clean Air Act (CAA) to impose its preferred energy policies on the nation. Our comments on EPA’s initial Proposal commencing this new rulemaking demonstrated that it is a pretextual pursuit of that same policy goal, to force coal- and gas-fired power plants to shut down and deter the construction of new ones, compelling a shift to wind and solar generation.
The pretextual form of the regulation is a fifteen-year-plan during which coal and gas plants must adopt measures not currently available, in clear violation of the statute’s requirement for EPA to identify a “system of emission reduction” that “has been adequately demonstrated.” Whatever ability EPA has to include projections of reasonable future technological development for new plants into its rules—and, as our Initial Comments show, it’s a limited one—no court has ever ruled EPA has any such authority for existing plants. Indeed, there are good reasons to believe it has none.
Our Initial Comments also showed that EPA did not analyze whether this new rule would impair the reliability of the nation’s electricity markets. EPA has now issued a Supplemental Notice soliciting broad comment on that issue—after falsely claiming in the Proposal that it had already analyzed it and found no cause for alarm. Yet, EPA has still not provided its own analysis, despite prompting from other federal agencies. EPA’s participation in the November 2023 conference that the Federal Energy Regulatory Commission (FERC) convened to discuss reliability generally and the reliability implications of the Proposal in particular provided no such analysis, or even any meaningful reassurance on this front, and instead left the distinct impression that EPA views this question as an annoyance—as somebody, anybody else’s problem.
EPA has now dug itself quite a hole. It’s required by statute to consider this aspect of the problem, and the Supplemental Notice demonstrates that EPA recognizes reliability is central to the validity of this rulemaking. But the agency either cannot or will not show its cards and forthrightly tell the public what effect it thinks its rule will have on reliability. Meanwhile, gloomy news for those championing a stampede to renewables, and statements by high-ranking Administration officials confirming the Proposal’s pretextual nature, darken the legal horizon. Unless EPA completely changes course and adopts an approach in keeping with the limits of its statute and the set of systems of emission reduction that actually have been “adequately demonstrated,” this rule will join the Clean Power Plan in the dustbin of regulatory history.
Comments on New Source Performance Standards for Greenhouse Gas Emissions from New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units
I. Introduction.
In striking down the Clean Power Plan, the Supreme Court taught that EPA cannot use Section 111 of the Clean Air Act (CAA) to impose its preferred energy policies on the nation. Our comments on EPA’s initial Proposal commencing this new rulemaking demonstrated that it is a pretextual pursuit of that same policy goal, to force coal- and gas-fired power plants to shut down and deter the construction of new ones, compelling a shift to wind and solar generation.
The pretextual form of the regulation is a fifteen-year-plan during which coal and gas plants must adopt measures not currently available, in clear violation of the statute’s requirement for EPA to identify a “system of emission reduction” that “has been adequately demonstrated.” Whatever ability EPA has to include projections of reasonable future technological development for new plants into its rules—and, as our Initial Comments show, it’s a limited one—no court has ever ruled EPA has any such authority for existing plants. Indeed, there are good reasons to believe it has none.
Our Initial Comments also showed that EPA did not analyze whether this new rule would impair the reliability of the nation’s electricity markets. EPA has now issued a Supplemental Notice soliciting broad comment on that issue—after falsely claiming in the Proposal that it had already analyzed it and found no cause for alarm. Yet, EPA has still not provided its own analysis, despite prompting from other federal agencies. EPA’s participation in the November 2023 conference that the Federal Energy Regulatory Commission (FERC) convened to discuss reliability generally and the reliability implications of the Proposal in particular provided no such analysis, or even any meaningful reassurance on this front, and instead left the distinct impression that EPA views this question as an annoyance—as somebody, anybody else’s problem.
EPA has now dug itself quite a hole. It’s required by statute to consider this aspect of the problem, and the Supplemental Notice demonstrates that EPA recognizes reliability is central to the validity of this rulemaking. But the agency either cannot or will not show its cards and forthrightly tell the public what effect it thinks its rule will have on reliability. Meanwhile, gloomy news for those championing a stampede to renewables, and statements by high-ranking Administration officials confirming the Proposal’s pretextual nature, darken the legal horizon. Unless EPA completely changes course and adopts an approach in keeping with the limits of its statute and the set of systems of emission reduction that actually have been “adequately demonstrated,” this rule will join the Clean Power Plan in the dustbin of regulatory history.