I have posted numerous times in recent years on the importance of the views of EPA’s own science advisors in judicial determinations whether EPA regulatory actions are arbitrary and capricious. With few exceptions, courts have affirmed EPA when the regulations were supported by EPA’s science advisors, and struck down the regulations when not supported by those advisors.
Now comes word that a work group of EPA’s Science Advisory Board has recommended that the SAB review the science supporting EPA’s proposed New Source Performance Standards for GHG emissions from electric generating units. In proposing the rule, EPA stated that the standards are not reliant on new science. However, the SAB work group disagreed:
this action involves precedential and novel issues that rely on new technologies and science for carbon capture and storage (CCS)…. The Work Group finds that the scientific and technical basis for carbon storage provisions is new science and the rulemaking would benefit from additional review.
Of course, such additional review might support EPA’s rulemaking and strengthen its case in defending the rule in the courts. On the other hand, it might not. I don’t think that EPA can get away with ignoring this recommendation. As to the ultimate outcome, I’m reluctant to speculate, but I do think that EPA’s conclusion that CCR is established technology is based on some fairly thin reeds.