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Will Yeatman - Comments to EPA Proposed Carbon Pollution Standard on 1/8/14

Will Yeatman - Comments to EPA Proposed Carbon Pollution Standard on 1/8/14

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The Competitive Enterprise Institute criticized EPA’s proposed Carbon Pollution Standard, a regulation which would effectively ban the construction of new coal-fired power plants. The regulation was published in today’s Federal Register, thereby kicking off a 60 day comment period.
The Competitive Enterprise Institute criticized EPA’s proposed Carbon Pollution Standard, a regulation which would effectively ban the construction of new coal-fired power plants. The regulation was published in today’s Federal Register, thereby kicking off a 60 day comment period.

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Published by: Competitive Enterprise Institute on Jan 09, 2014
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03/18/2014

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Initial Comments on
EPA’s
Proposed Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electricity Generating Units Docket EPA-HQ-OAR-2013-0495 RIN 2060-AQ91
 
By William Yeatman, Senior Fellow, Competitive Enterprise Institute, wyeatman@cei.org 
Introduction: Standard of Review for Clean Air Act §111 NSPS
The United States Court of Appeals, District of Columbia Circuit is the court of exclusive review for New Source Performance Standards (NSPS) and has examined Clean Air Act §111 on several prior occasions.
1
 The
court’s decisions
, in turn,
have “established
 
a rigorous standard of review under § 111.”
2
 Broadly, the court has described its Clean Air Act §111 review
as being “a test of reasonableness.”
3
 In order to survive review,
the administrator’s
NSPS determination
must consider all of the relevant factors and demonstrate a reasonable connection between the facts in the record and the resulting
policy scheme.”
4
 While the court must be mindful of the high degree of deference it must show the
agency’s scientific judgment,
5
 
“the necessity to review agency deci
sions, if it is to be more than a meaningless exercise, requires enough steeping in technical matters to determine whether the agency
has exercised a reasoned discretion.”
6
 Regarding its review of Clean Air Act §111, the court has
explained that, “ultimately…the cause of a clean environment is best served by reasoned decision
-
making.”
7
 
1
 
Portland Cement Association v. Ruckelshaus,
 486 F.2d 375 (D.C.Cir.1973);
Essex Chemical Corp. v. Ruckelshaus,
 486 F.2d 427 (D.C.Cir.1973);
National Asphalt Paving Association v. Train,
 539 F.2d 775 (D.C.Cir.1976);
National Lime Association v. Environmental Protection Agency 
 627 F. 2d 416 (D.C. Cir. 1980);
Lignite Energy Council, et al. v. Environmental Protection Agency 
 198 F.3d 930 (D.C. Cir. 1999);
Sierra Club v. Costle
, 657 F.2d 298 (D.C. Cir. 1981)
2
 
National Lime Association v. Environmental Protection Agency 
 627 F. 2d 416 at 429
3
 
Essex Chemical Corp. v. Ruckelshaus,
 486 F.2d 427 at 434
4
 
Sierra Club v. Costle
, 657 F.2d 298 at 323
5
 See, e.g.,
 Appalachian Power Co. v. EPA
 135 F.3d 791, 801-802 (D.C. Cir. 1998)
6
 
Portland Cement Association v. Ruckelshaus,
 486 F.2d 375 at 402 citations, quotations omitted; The court stated eloquently stated this aspect of review in
Essex Chemical Corp. v. Ruckelshaus
:
While we must bow to the acknowledged expertise of the administrator on matters technical, we should not automatically succumb thereto, over
whelmed as it were by the utter “scientificity” of the expedition” at 434
 
7
 
Portland Cement Association v. Ruckelshaus,
 486 F.2d 375 at 402
 
The statutory
“focal point” of the court’s review of a NSPS is the administrator’s determination of a “standard of 
 performance,
8
 which reflects the degree of emission limitation
achievable
 through the application of the
best system of emission reduction
 which (taking into account the
cost
 of achieving such reduction and any
nonair quality health
and
environmental impact
 and
energy requirements
) the Administrator determines has been
adequately demonstrated
.
9
 (formatting added to stress statutory terms) In
Sierra Club v. Costle
, the court “parsed” this difficult statutory phrasing of “standard of performance”:
 [Clean Air Act] § 111 most reasonably seems to require that EPA identify the emission levels that
are “
achievable
” with “
adequately demonstrated technology
.” After EPA makes this
determination, it must exercise its discretion to choose an achievable emission level which represents the
best balance
 of
economic
,
environmental
, and
energy considerations
.
10
 (formatting added) As is explained in the sections below, the
court’s prior decisions
have further interpreted many of these terms, in order to guide the NSPS process. For example, the administrator must ensure that a
technology is commercially viable before it can be determined to be “adequately demonstrated.” And when she considers whether an emission standard is “achievable,” the administrator must take into
account the representativeness of the data that she used to justify her decision. After the administrator makes those two determinations
(”
adequately demonstrated technology
” and “achievable
 standard
”)
, she then must balance economic, environmental, and energy impacts to choose the best system of emission reduction. Although the court has recognized that the administrator has
“a
great degree
of discretion” in weighing these
factors,
11
 her choice is not unrestrained. Prior decisions have established the parameters of reasonable decision-making,
as a safeguard against “crystal ball”
inquiry.
12
 
8
 
Essex Chemical Corp. v. Ruckelshaus,
 486 F.2d 427 at 433
9
 
Clean Air Act §111(b)(1)(B) requires the administrator to “publish proposed regulations, establishing Federal
standards of performance for new sources [within a source category that has been determined to contribute significantly to air pollution that end
angers public health or welfare].” The term “standard of performance” is
defined in Clean Air Act §111(a)(1).
10
 
Sierra Club v. Costle
, 657 F.2d 298 at 330
11
 
Lignite Energy Council, et al. v. Environmental Protection Agency 
 
198 F.3d 930 at 933, “Because section 111 does
not set forth the weight that should be assigned to each of these factors, we have granted the agency a great degree of discretion in balancing them.
12
 
Portland Cement Association v. Ruckelshaus,
 486 F.2d 37
5 at 391, “The administrator may make a projection
based on extisting technology, though that projection is subject to the restraints of reasonableness and cannot be
based on “crystal ball” inquiry. (citations omitted)
 
 
Notably, judicial
review of the agency’
s balancing of the relevant factors is conditioned on the newness of the technology on which the sta
ndard is based. As the “imprint
 of the new technology
 on the rule
increases, the court’s review becomes “more demanding.”
 13
 
This is important in the context of the EPA’s proposed rule, which is based on the “newest” possible
technology (carbon capture and sequestration), one that hasn
’t yet been demonstrated commercially. It follows that EPA’s balancing of the statutory considerations in formulating the proposed NSPS is held to
the most demanding standards of review.
Summary of Comments
on EPA’s Proposed Carbon Pollution Standard
 
1.
 
The administrator failed to perform a determination that partial CC
S is “adequately determined,”
 as is required by the statute. Instead, the agency contrived a new determination
(”technical feasibility”) unrelated to the court’s guidance on Clean Air Act §111 i
nterpretation. The record, in fact, does not support an
“adequately demonstrated” determination for partial
CCS, because the technology has not been demonstrated commercially. It is incumbent upon the administrator to dispel such doubts by performing a reasonable analysis. 2.
 
The administrator failed to perform a determination that an emissions standard based on partial
CCS is “achievable,” as is required by the statute. Instead, the agency contrived a new determination (“technical feasibility”) unrelated to
 
the court’s guidance on Clean Air Act §111
interpretation. The record, in fact,
does not support an “achievability” determination for an
emissions standard based on partial CCS, due limited availability of the technology. It is incumbent upon the administrator to dispel such doubts. 3.
 
The administrator expects new coal plants that comply with NSPS will sell captured CO2 to oil companies, which will use the gas to enhance oil recovery. Yet the administrator impermissibly failed to take into account the CO2 attributable to the oil that is recovered using gas captured at the coal plant. Evidence indicates that the CO2 from oil derivative of the NSPS is significant, and perhaps even exceeds, the CO2 reduced by partial CCS. This suggests that the NSPS could do more harm than good, which is plainly unreasonable. It is incumbent upon the administrator to dispel such doubts.
Comments on
EPA’s Proposed
Carbon Pollution Standard
1.
 
Summary of Comment on Administrator’s Responsibility to Determine “Adequately Demonstrated Technology”
The administrator failed to perform a determination that partial CCS
s “adequately determined,” as is
 required by the statute. Instead, the agency contrived a new determination
(”technical feasibility”) unrelated to the court’s guidance on Clean Air Act §111 interpretat 
ion.
The record, in fact, does not support an “adequately demonstrated” determination for partial
13
 
Sierra Club v. Costle
657 F.2d 298
at 348, “the greater the imprint of the new technology on the final rule, the more demanding our review of the evidence about the potential benefits and capabilities of the new technology.”
 

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