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What I’m Thankful For: EPA’s Strong Resolve to Press for Deep Carbon Pollution Reductions Under the Clean Air Act

November 24, 2014

Over the past 43 years, the Clean Air Act has repeatedly demonstrated its extraordinary effectiveness in assuring cleaner air by promoting and securing innovations in pollution control.  You don’t have to take my word for it, you can just compare the air in any major U.S. city to that in Beijing.

These pollution control innovations have been inspired – and most importantly, secured – through the section of the Act that sets performance standards for new sources, based on the “best system of emissions control.”  As the Congress said in passing that section, and as the courts have held, EPA is meant to take action that is forward-looking, technology-forcing, and that secure meaningful advances in pollution control and cleaner air.

I’m grateful for EPA’s recognition and resolve around the potential for using this regulatory tool to get future reductions in the carbon pollution that causes climate change.

And yet, some members of Congress want to scuttle any effort to do so.  The most recent salvo in their war against carbon pollution controls is a letter signed by four members of the House, arguing that a separate law prohibits the Agency from even considering U.S. projects that demonstrate advanced carbon controls.  The letter, signed by Representatives Whitfield (R-Kentucky), Upton (R- Michigan), Barton (R-Texas) and Scalise (R-Louisiana), misleadingly asserts that if a technology has received federal subsidies under the Clean Coal Power Initiative, it can never form the basis for EPA’s performance standards.

That’s just wrong!  Never mind that the only technologies that are eligible for subsidy are exactly the kinds of pollution controls that the Clean Air Act is meant to promote:  those that “advance efficiency, environmental performance, and cost competitiveness well beyond” those currently in widespread commercial use. (42 USC § 15962(a)).  Their letter is misleading on several fronts, even to the point of misquoting the statutes upon which the authors rely. For example, the letter asserts that under the Energy Policy Act of 2005 (“EPACT”) and a related tax provision, EPA is prohibited from setting a performance standard based on a technology that has received an EPACT subsidy.  Notably, the letter’s authors cite only a fragment of the tax statute and leave out words and punctuation in the clean coal statute in making this argument.

But, thankfully, the language of the statutes does not compel EPA to pretend that projects that have received taxpayer support do not even exist.   And, although it may be arguable that the performance of a facility that has received a subsidy can’t be relied on by EPA as the sole evidence that a technology is adequately demonstrated, EPA has not done so.  Instead, EPA relies on a host of other projects, in the U.S. and around the globe, many of which have been in operation for decades, to show that the technology is adequately demonstrated.  (Prepublication Rule, pp 215-237, and n. 222 (citing the DOE/NETL’s Carbon Capture, Utilization, and Storage (“CCUS”) Database, available at http://www.netl.doe.gov/technologies/carbon_seq/global/database/)). These projects include, but emphatically are not limited to: a large-scale project (the Dakota Gasification facility) in a closely related industry in the United States, and the SaskPower Boundary Dam Carbon Capture and Sequestration Project in Estevan, Saskatchewan, which will fully integrate a rebuilt existing full scale (110 MW) coal-fired unit with available carbon capture and sequestration technology when it begins operation in 2014.

This is as it must be.  Forty years of court decisions hold that in setting performance standards for an industry under the Clean Air Act, the Agency must look beyond technologies and practices in current routine use in this country or the industry, to what may fairly be projected for the regulated future, and with an eye to what constitutes the “best” system of emissions reduction for the pollutant and the industry.

The facilities subsidized in part by the EPACT clean coal and tax credit provisions are clearly not the only basis for EPA’s proposed conclusion that a 1100 pounds of CO2 per MW-hr standard can be met by new coal plants constructed after 2014.  EPA’s Assistant Administrator Janet McCabe, in her recent testimony before the Mr. Whitfield’s Subcommittee on Energy and Power, discussed the fact that some of the other projects on which EPA is relying for its analysis have been operating in various other industrial applications here and around the globe for over 30 years.

In short, the U.S. projects are just the icing on the “adequately demonstrated” cake: EPA has plenty of other evidence to find as it has, that carbon capture and sequestration technology can form one of the bases for EPA’s proposed performance standards for the electric power industry.  Thankfully so. Strong EPA rules for the power industry (which represents about 40 percent of all stationary source CO2 emissions in this country) are our best shot at CO2 reductions from U.S. industrial sources.  Representatives Whitfield, Upton, Barton and Scalise clearly are trying to crater the whole enterprise, apparently preferring to pay for the consequences of extreme climate change later, but that’s not CATF’s view of a productive approach to climate change pollution.

Fortunately, that’s not EPA’s idea of a good approach, either.  And that is something to be very thankful for.

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