EPA Greenhouse Gas Rules: A “Modest” and Empty Plan

I just got off a press conference call on EPA’s announced new greenhouse gas (GHG) emissions standards.

Today, EPA announced that they would issue “New Source Performance Standards” (NSPS) under the Clean Air Act for GHG emissions from coal and oil power plants and refineries (see this for background on EPA’s approach to GHGs).

EPA merely announced schedules for the new rules and refused to comment on any substance.

Oil/coal NSPS rules will be proposed by 7/26/11 and adopted by 5/26/12. Rules for refineries will be proposed by 12/8/11 and adopted by 11/15/12.

By way of background, the rules stem from the 2007 US Supreme Court’s decision in Massachusetss v. EPA that found that GHG are “pollutants” under the Clean Air Act. In that decision, the Supreme Court directed EPA to make a regulatory determination under the Clean Air Act.

In response, EPA issued a finding that GHG emissions “endanger” public health and welfare. Several states and environmental groups then filed petitions to force EPA to enact meaningful regulations.

Today’s announced plan to adopt NSPS rules result from Settlement agreements EPA entered into under that litigation. EPA entered into two settlement agreements to issue rules to address greenhouse gas emissions from fossil fuel-fired power plants and refineries.  These two industrial sectors make up nearly 40 percent of the nation’s greenhouse gas emissions.

So the take home point is that this is not about EPA leadership, but rather EPA response to litigation and Court mandates.

There are about 500 coal or oil power plants and 150 refineries currently operating in the US that could be subject to the new standards IF they make “major modifications”, or IF states voluntarily decide to fully incorporate and apply federal emission guidelines.

Under the Clean Air Act, it is important to note that EPA national NSPS do NOT apply to existing plants, which are left to State programs under State plans. EPA issues emissions guidelines that states may consider in their State Plans (see above Section 111(d) looppholes).

EPA repeatedly refused to talk about any substantive aspect of the new rules or to estimate a range of potential GHG emissions reductions the rules might achieve.

During the press briefing, EPA’s Assistant Administrator for Air used all the code words that signal weakness and dodge Congressional minefields.

She repeatedly stressed that any new rules would be: 1) modest; 2) cost effective; 3) flexible; 4) common sense; 5) made part of existing EPA sector based NSPS air toxics and criteria pollutat permit programs; and 6) phased in by EPA and States. She repeatedly refused to estimate ANY level of emission reduction or how many existing plants the new rules could impact.

In response to reporters who repeatedly asked the political hot button question about Republican opposition in Congress, EPA emphasized that: 1) the NSPS were NOT a cap and trade system; 2) did NOT establish a price on carbon; 3) did NOT involve EPA setting an overall emissions reduction goal: and 4) were based on the longstanding Clean Air Act NSPS program and therefore did NOT require new Congressional authorization (but this will not shield this proposal from Congressional oversight).

The new NSPS rules will be based on existing technology at existing coal and oil power plant and refineries.

In repeatedly downplaying the significance of the new rules (i.e. the EPA AA for air actually called the proposal “business as usual“), EPA touted decades long experience with these “heavily regulated” sectors. During this period, EPA said they had documented several existing technologies that can provide significant opportunities to significantly reduce emissions cost effectively. Based on this regulatory experience, EPA estimated the significant GHG emissions reductions could be made by technology investments that had payback periods from at little as 3 months to 3 years.

Yet, despite this claimed extensive experience and well known cost effective GHG emission reduction opportunities, EPA refused to identify one technology or provide an estimate – or range – of potential GHG emissions reductions that were feasible or could be expected to result from the new rules.

The EPA NSPS limited sector approach is the worst of all possible  worlds, for at least three reasons:

1. It can not cap and reduce emissions, or get us to meaningful emissions reduction goals

The plan is a huge disappointment to any environmentalist who had hoped EPA would use existing authority under Section 108 NAAQS of the Clean Air Act to comprehensively and aggressively regulate GHG emissions in the wake of the death of the cap and trade legislation and new Republican control of the House of Representatives.

The flaws are several:

• the approach is limited to just 2 industry sectors and will apply to only 40% of current GHG emissions
• there are no overall GHG emission reduction goals or requirements linked to the individual plant specific NSPS permitting technology based approach. Thus, the rules can not block new coal power plants or increases in current GHG emissions.
• EPA NSPS are based on costs factors and existing technology – they are not technology forcing.
• EPA NSPS consider costs and States may balance plant specific costs and economic factors. This defaults to the lowest common denominator at the State level and which will undermine the ability to secure needed deep reductions.
• EPA national NSPS apply directly to only to new facilities or major modifications of existing facilities – states are given flexibility to apply EPA emission guidelines to existing facilities.
• States have great flexibility to set standards for existing facilities, both in terms of the substance and the schedules to implement GHG emisison controls. So coal dominant states like Ohio, Illinois, Pennsylvania will not limit emissions from existing coal plants and EPA can not force them to do so.

2. It will prompt furious industry opposition and political attacks in Congress – all pain, no gain.

Regardless of these shortcomings, politically powerful coal and oil inteterests nonetheless will see EPA regulation as a potential threat and attack and oppose the proposal strenuously.

3. It is conceptualy flawed and can not be integrated into internation Climate Change treaty efforts

For policy wonks, the proposal is conceptually flawed, because the technology based approach under the Clean Air Act’s “New Source Perfomacne Standards” (NSPS) approach is not tied to any national  emission reduction targets (i.e it is NOT a cap). Thus, NSPS can not address the fundamental objective of a GHG policy: to cap and reduce overall current emissions to meet a numeric global warming goal (e.g. 350 ppm atmospheric CO2 concentration) or overall national reduction goal as part of an enforceable global warming initiative under UN processes.

This is go slow status quo – not change we can believe in.

It will be intersting to see how this plays ou in corporate press. All the big news outlets participated (WaPo, NY Times, Wall Street Journal, CBS, Reuters, Dow Jones, USA Today, LA Times, McClatchey, Politico, et al)  but all reporters asked questions that suggested they were deeply confused about basics, like how NSPS program works and how technolgy based emission controls compare to a cap and trade approach.

Interestingly, the EPA spokesperson was NOT Administrator Lisa Jackson – I sensed that using the EPA Assistant Administrator for Air as EPA spokesperson was an attempt to downplay this as “business as usual” to mute harsh Congressional and business community reaction.

My guess is that national enviro’s will salute it – warts and all – in an all too typical effort to build support, but really this stance is just a political compromise that reveals weakness and fear of Congress and industry oppostion.

[note: technical portions of the original post were slightly revised and corrected. Conclusions have not been changed.]

[Update 3 – Bingo! at least the McClatchy  story gets it right (McClatchy was the only news outlet with the integrity to expose the Bush Administration’s Iraw war justification as a fraud too):

Existing plants – about 500 coal-fired power plants and 150 refineries – would continue to operate as usual until states impose their own regulations.

Does anyone think that new Republican Governors in Pennsylvania and Ohio will impose strong regulations on all their dirty coal plants? No way that happens. If you believe it will, I’ve got some real estate in Florida for you!

Update 2 – 12/24/10 – Consider this absurdity:

Under the Clean Air Air Section 108-110 NAAQS program, EPA strictly regulates billions of consumer products – from paints, hairspray, and deodorants to lawn mowers and ATV’s – to get tiny emission reductions to reduce respiratory disease (via ground level ozone and fine particulate NAAQS).

I don’t want to downplay the significance of respiratory disease, but if EPA can do all that to reduce human respiratory diseases, why can’t EPA use the same strict regulations to reduce GHG emissions that are killing planetary scale ecosystems and thousands of people?

Why can’t EPA do more than just “modest” regulations to only slightly reduce GHG emissions from 650 large industrial plants that produce less than 40% of GHG emissions (and with no specific emission reductions even specified)?

EPA has very successfully improved air quality over the ast 40 years using the CAA NAAQS approach.  So we know what works.

EPA’s failure to invest same level of effort for GHG emissions using the same effective  NAAAQS tools is absurd and reflects not science, but anti-regulatory ideology and the political power of special interests to cow EPA (no pun).

Because yes, I favor regulating methane emissions fom cows too. There is lots we can do, from reducing the amount of meat and dairy we eat, to reducing the size of the herd and changing the way we feed and graze cattle.

And yes Obama supporters, I  know all about the EPA “Tailoring rule” and wrote a similar analysis last December: EPA Proposed Global Warming Rule Would Protect Polluters by Locking in Loopholes

Note – I changed the original title to avoid valid criticism of inaccurately comparing the Bush and Obama EPA. The Bush administration declined to regulate coal/oil power an refinery emissions at all – while the Obama EPA took a tiny “modest” step to do so (EPA’s own words in EPA press release headline).  Plus, the EPA plan is only a schedule, it has no content and is thus by definition “empty”. end update]

Update 1: There are different options under the Clean Air Act for regulating Greenhouse gas emissions. To understand the flaws in the EPA’s NSPS sector based approach announced today requires a broader discussion of alternative approaches to regulating GHG under the Clean Air Act discussed by the Bush EPA in the July 2008 ANPR.  

The Obama EPA took same wrong path Bush took. Obama EPA rejected the stronger, science based Section 108 National Ambient Air Quality Standards (NAAQS) criteria pollutant approach in favor of pursuing the “flexible”, “cost effective”, and “political feasible” Section 111 NSPS Sector approach.

Under Section 108 NAAQS: (page 44,367):

Section 108 of the CAA requires EPA to identify and list air pollutants that “˜cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.”. For such pollutants, EPA promulgates “primary” and “secondary” NAAQS. The primary standard is defined as the level which, in the judgment of the EPA Administrator, based on scientific criteria, and allowing for an adequate margin of safety, is requisite to protect the public health. The secondary standard is defined as the level which is requisite to protect the public welfare. Within one year of EPA of a new or revised NAAQS, each State must designate its regions as nonattainment, attainment, or unclassifiable. Within three years from the NAAQS promulgation, States are required to adopt and submit to EPA a State implementation plan (SIP) providing for the implementation, maintenance, and enforcement of the NAAQS. ….. the courts have held that when setting a NAAQS, EPA cannot consider important policy factors such as cost of compliance.

Using the 108 NAAQS criteria pollutant approach would have allowed EPA to adopt 350 ppm as a NAAQS, set that standard irrespective of costs, defined the entire country as a non-attainmetn zone, and directly regulated all emission sources, not just 2 sectors that account for less thnan 40% of total emissions. Section 108 NAAQS is faster, science based, puts EPA in charge, does not consider costs, and is stronger overall than the EPA seelcted Section 111 NSPS approach.

The EPA NSPS Section 111(d) sector approach is flawed, as outlined by EPA ANPR (@  page 44,487). Basically, the NSPS consider costs and allow coal powered states with grandfathered existing soruces to take advantage of huge loopholes in EPA rules:

Instead of giving EPA direct authority to set national standards applicable to existing sources in the source category, section 111(d) provides that EPA shall establish a procedure for states to issue performance standards for existing sources in that source category. Under the 111(d) mechanism, EPA first develops regulations known as “emission guidelines”. These may be issued at the same time or after an NSPS for the source category is promulgated. Although called “guidelines”,they establish binding requirements that states are required to address when they develop plans to regulate the existing sources in their jurisdictions. These state plans are similar to [Note: not legally the same as] state implementation plans and must be submitted to EPA for approval. …. In the event that a state does not adopt and submit a plan, EPA has authority to then issue a federal plan covering affected sources.[Note: what happens if a state has a crappy plan?]…, both the statute and EPA implementing section 111(d) recognize that existing sources may not always have the capability to achieve the same levels of control at reasonable cost as new sources. The statute and EPA regulations in 40 CFR 60.24 permit states and EPA to set less stringent standards or longer compliance schedules for existing sources where warranted considering cost of control; useful life of the facilities; location or process design at a particular facility; physical impossibility of installing necessary control equipment; or other factors making less stringent limits or longer compliance schedules appropriate. [that spells LOOPHOLE]

The Bush EPA rejected the Section 108 NAAQS approach as too costly and politically infeasible.

So did Obama and Lisa Jackson. Same as Bush – this is not change we can believe in].