At least 17 states may file suit to block US rules on power plants

17 September 2013 22:11  [Source: ICIS news]

WASHINGTON (ICIS)--At least 17 states are likely to file suit to block federal rules limiting carbon dioxide (CO2) emissions by new electric power plants, according to comments made on Tuesday, charging that Washington is exceeding its authority.

Led by Attorney General Jon Burning of Nebraska, the 17 states argue in a white paper sent to the Environmental Protection Agency (EPA) that the agency has usurped the legal authority of state governments in implementing requirements of the Clean Air Act (CAA) by mandating emissions standards that instead should be set by states.

The brief was sent to EPA administrator Gina McCarthy, who is expected to issue rules on Friday this week (20 September) limiting emissions of CO2 and other greenhouse gases (GHG) by new power plants.

EPA is to issue a separate set of rules by June next year governing and limiting emissions from existing power plants.

Both regulatory initiatives are expected to essentially bar electric power generation by coal-fired utilities.

In his letter and analysis to McCarthy, Nebraska’s Bruning said he was responding “to EPA’s aggressive proposal for GHG performance standards for new EGUs [electric generating units] and indications of a similarly aggressive stance on existing EGUs”.

Speaking for the other 16 state attorneys general, Burning said that their “concerns are justified given EPA’s unwillingness to appropriately defer to state authority under the Clean Air Act in recent years”.

Bruning said that the CAA “is unambiguous in granting to states the sole authority to determine actual substantive standards as applied to individual sources” such as power plants.

“EPA’s role is limited to establishing procedures whereby states develop and implement performance standards for existing EGUs,” he added.

Bruning argued that there is “a serious, on-going problem in environmental regulation: the tendency of EPA to seek to expand the scope of its jurisdiction at the cost of relegating the role of the states to merely implementing whatever Washington prescribes, regardless of its wisdom, cost or efficiency in the light of local circumstances”.

“EPA’s clear policy goal in establishing its new source standards is to prevent the construction of new coal plants,” Bruning said.

“These concerns are serious,” he said, arguing that if EPA proceeds as indicated, power plant emissions regulations “may harm the nascent US economic recovery”.

In addition, he said, “our federalist system of government, as implicated in the CAA, requires that EPA recognise the rights and prerogatives of states”.

In his brief to EPA about this week’s anticipated emissions rules for new power plants, Bruning said those regulations “will likely face legal challenge”, indicating that the 17 states will go to federal court in an effort to block the EPA move.

Federal actions that may limit US utilities fuel options for power generation are of concern to the nation’s chemicals producers because they are major consumers of electricity.

Chemical makers also have expressed concerns that government-forced fuel-switching among utilities from coal to natural gas will increase demand and prices for natgas, on which chemical firms depend for feedstock and as an on-site power fuel. 

Joining Bruning in the challenge to EPA were the attorneys general from Oklahoma, Michigan, Alabama, Alaska, Arizona, Florida, Georgia, Kansas, Kentucky, Montana, North Dakota, Ohio, South Carolina, South Dakota, West Virginia and Wisconsin.

Many of the states represented are either coal-producing states or are heavily dependent on coal-fired generators for much of their electricity.

Asked if Bruning and the other attorneys general plan to file suit against EPA after Friday’s rules are issued, a spokeswoman for the Nebraska official noted that Bruning’s brief to McCarthy already specifies that “new performance standards for new EGUs will likely face legal challenge”.

The spokeswoman also indicated that other states may join the current 17 state governments that are opposing EPA’s anticipated emissions rules for power plants.


By: Joe Kamalick
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