New Greenhouse Gas Regulations

This week the EPA proposed its first-ever regulation of carbon dioxide as a greenhouse gas.

The proposed rule — years in the making and approved by the White House after months of review — will require any new power plant to emit no more than 1,000 pounds of carbon dioxide per megawatt of electricity produced. The average U.S. natural-gas plant emits 800 to 850 pounds of CO2 per megawatt; coal plants emit an average of 1,768 pounds of carbon dioxide per megawatt.

Industry officials and environmentalists said in interviews that the rule, which comes on the heels of tough new requirements that the Obama administration imposed on mercury emissions and cross-state pollution from utilities within the past year, dooms any proposal to build a new coal-fired plant that does not have costly carbon controls....

The rule provides an exception for coal plants that are already permitted and beginning construction within a year. There are about 20 coal plants now pursuing permits; two of them are federally subsidized and would meet the new standard with advanced pollution controls.

Based on the coverage I read, it looks like the coal industry and its political patrons are trying to paint this as a sign of the EPA having a radical agenda. The EPA only came to this point reluctantly, however. The EPA was bound by a Supreme Court decision in 2007 to determine whether carbon dioxide was a harmful pollutant as defined by the Clean Air Act. Once the EPA determined that carbon dioxide emissions are causing harm in 2009, it was bound by the Clean Air Act to issue regulations. Even so, the Obama administration waited three years after the initial determination to do something about it because they wanted Congress to pass a new climate change bill.

A potential downside of the new regulation is that it only applies to new power plants and not existing ones. So this will not lead to an immediate decrease in greenhouse gas emissions. That will only happen once older coal plants come offline and get replaced with cleaner power sources. However, David Roberts argues that regulations of existing plants are bound to come at some point.

Here’s the story: Once something is deemed a pollutant under the Clean Air Act (which, in the case of CO2, was settled by the Mass v. EPA Supreme Court case), then it must be regulated under Section 111 of the act, the New Source Performance Standards program.

Section 111b governs new sources. That’s what was issued today. But when EPA regulates under 111b, that triggers a legal obligation for it also to regulate existing sources under 111d.
Which is a nerdy way of saying: EPA is legally obligated to regulate existing power-plant sources of CO2.

All that remains is to determine the timing. A bunch of green groups sued EPA over their delay on CO2 several years back. The settlement that was reached obligated EPA to issue CO2 regs by last September. Obviously that didn’t happen. Green groups then agreed to a few extensions. They have taken the issuance of the rule today as a sign of good faith from EPA that it’s on track.

Regulation of existing sources under 111d is a much trickier, more difficult matter than regulation of new sources. There are genuinely novel questions of law and technology involved. EPA has been grappling with these questions, but it’s not easy and there are a great many interested stakeholders, to say the least. Even if it wanted to, EPA probably couldn’t get that rule done and issued before the election.

On the whole, I think this is a step in the right direction, though perhaps not one that will bear immediate fruit. If Obama is reelected, it would not surprise me to see some regulation of existing sources during his second term. Of course, if he loses, the new regulation could be watered down or rescinded entirely, though the latter would be in defiance of the Supreme Court.