Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

Today, EPA announced settlements of litigation with states and environmental groups which will require EPA to promulgate New Source Performance Standards for greenhouse gas emissions from electric generating units and refineries. EPA will thus give those of us who practice in this area an opportunity to decide which program we find more cumbersome and ill-suited to regulate GHGs, the PSD/NSR program or the NSPS program.

As with the PSD/NSR regulations, I remain sympathetic to EPA in that, once you take Massachusetts v. EPA as a given, and if you accept the logic of the Endangerment Finding, then it is difficult to see how EPA can avoid these regulations. Moreover, EPA has described its expected set of performance standards as “modest” – though modesty, of course, is in the eyes of the beholder. 

Nonetheless, it’s not surprising that opponents of GHG regulation see this as another stick in the eye. Here is what Senator Murkowski’s spokesman, Robert Dillon, had to say:

The administration used the threat of EPA regulations as a cudgel to force Congress to pass cap and trade. It was a strategy that failed.  You've opened Pandora's box now. You've let the agency loose with these new regulations when they're interpreting the law.

Of course, it’s EPA’s job to interpret the law. That doesn’t make me happy about it.

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Two seemingly unrelated reports last week serve as a reminder that coal remains very much under siege. First, Earthjustice, on behalf of a number of environmental organizations, filed a petition with EPA under § 111 of the Clean Air Act requesting that EPA identify coal mines as an emissions source and, consequently, establish new source performance standards for coal mine emissions of methane and several other categories of pollutants. 

Second, as Daily Environment reported, the Army Corps of Engineers suspended use of Nationwide Permit 21 for the six states in the Appalachian region, covering Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. The decision means that, at least for now, mountaintop removal mining operations in these states will have to apply for and obtain individual Clean Water Act permits, rather than relying on the Nationwide permit.

Other significant regulatory actions affecting the long-term economics of coal include EPA’s decision to tighten regulation of coal combustion residuals, whether through identification of CCR as a hazardous waste or through regulation under RCRA subtitle D – with the current betting being on listing of CCR as a hazardous waste, and EPA’s Tailoring Rule, which will focus initial regulation of GHG emissions on large stationary sources, the most obvious of which are large coal-fired power plants.

All of these actions are nominally independent, but if anyone thinks that at least the NGOs such as the Center for Biological Diversity and Earthjustice don’t see these as related actions the cumulative goal of which is to end use of coal, they’re just not paying attention. Does Lisa Jackson feel the same way? I doubt she’ll ever tell us, but I think I know the answer.

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Harking back to legislative efforts of a few years ago, Representative John McHugh (R-NY) yesterday introduced legislation that would require significant reductions in emissions of SO₂ and NO_x, and mercury from power plants. The highlights of the bill include the following:

• No later than two years from enactment, EPA must promulgate regulations requiring that powerplants:
  • reduce SO₂ emissions by 75% over the Phase II levels contained in the current CAA acid rain program
  • reduce NO_x emissions by 75% over 1997 levels
• Even aside from the above-described reductions, on the later of 5 years from enactment or 30 years from initial operation, powerplants must meet applicable new source performance standards, or NSPS
• Mercury emissions from coal-fired powerplants will be restricted to 0.6 pounds per trillion Btu. These limits will go into effect:
  • As of the date of operation, for facilities beginning operations after December 31, 2010
  • As of January 1, 2013, for facilities existing as of December 31, 2010

There is no provision for a cap-and-trade program with respect to mercury. The bill would impose a penalty of $10,000 per ounce on facilities that exceed the mercury limit.

Representative McHugh has said that he hopes to attach the legislation to the climate change bill. I haven’t seen any discussion yet regarding the bill’s prospects, but the fact that it was introduced by a Republican, albeit one from New York, suggests that something like this is at least possible. 

To me, the requirement that existing facilities attain NSPS may be the most interesting part of the bill. While the regulated community is diverse, I think that, given sufficient time to meet NSPS, at least some fraction of owners of existing facilities would be willing to do so, if – and it’s a big if – Congress would in return make changes to the NSR/PSD rules so that facility owners would not have to engage in a difficult, expensive, and uncertain NSR review for every conceivable facility modification. Freedom from NSR review in return for compliance with NSPS by a reasonable date certain? That would be an interesting trade-off.

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Opening yet another front in the effort to force EPA to take more aggressive action to combat global warming, the Environmental Defense Fund recently announced its intent to sue EPA for its failure to update emissions standards with respect to emissions of methane from landfills. As EDF has alleged, Section 111 of the Clean Air Act requires that EPA update its New Source Performance Standards every eight years. EPA last updated the landfill NSPS in 1996.

Of course, at the time EPA last promulgated landfill NSPS, climate change was not part of the equation. Now, it is. Methane is a potent greenhouse gas, 21 times more potent than CO₂. Although landfills have increasingly made efforts to capture methane for waste-to-energy projects, these efforts are apparently not fast enough or comprehensive enough for EDF.

Specifically, in its 1996 promulgation, EPA determined that energy recovery from landfill methane was not available. EDF, in its Notice, cites sources indicating that energy recovery is now feasible, even at smaller landfills. 

The likelihood that EPA will revisit this issue in the limited time remaining to the current administration seems vanishingly small. However, there is no doubt that this issue will be revisited in the next administration. Given methane’s potency as a greenhouse gas, it seems likely that regulations will target this area, whether as part of a revision to NSPS or as part of a broader strategy aimed directly at climate change. Once cap and trade programs expand beyond the power generation sector, as seems likely, regulators are certainly going to be looking at reductions from landfills, among other non-power sources.

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