EPA Section 111(d) Existing Stationary Source Rulemaking (“Clean Power Plan”)

The rule promulgated by the US Environmental Protection Agency (EPA) establishes carbon dioxide emission performance rates for coal- and gas-fired electric generating units. Those performance rates are then used to calculate emission performance requirements for 47 of the 50 States. Each of these States must submit a plan to EPA setting forth how it will restructure the power sector within the State to meet its emission reduction requirement. EPA claims that the rule is authorized under section 111(d), 42 U.S.C. § 7411(d), of the Clean Air Act. EPA has relied on this section of the CAA only a handful of times in the history of the Act and has never issued a rule of this scope or magnitude under this provision – or, for that matter, any other provision of the Act. The rule requires, through the States, a restructuring of the American electric utility industry that will impact every American in some way if it is implemented.

ELCON Position & Recommendations

The CPP rule exceeds EPA’s authority under the Clean Air Act.  It unlawfully abandons EPA’s prior source-specific approach to pollution control technologies and expands the agency’s focus to the entire “integrated electricity system.”  Other concerns regarding the economic and technical feasibility of the rule include EPA’s failure to: (1) adequately address the rule’s impact on electric reliability; (2) adequately assess the rule’s impact on electricity cost; (3) consider the limitations on the availability of renewable resources and energy efficiency; and (4) recognize the infeasibility of the rule’s implementation timeline.

All EPA rulemakings must take into account the total direct and indirect costs imposed on all segments of the US economy and especially US manufacturers who are either or both energy-intensive and trade exposed.  Additionally, all regulations should be drafted and implemented only after a thorough analysis of their collective impact on the reliability of the Bulk Electric System.

Core Legal Issues Associated with the Clean Power Plan

ELCON believes that the Rule violates section 111 of the Clean Air Act by:

• Requiring that States adopt standards of performance that are not “for,” and cannot be “applied” to, individual existing fossil fuel-fired electric generating units, but that instead require the owners and operators of these facilities to subsidize EPA-preferred facilities;
• Requiring that States adopt standards of performance that are not based on technological or operational processes that continuously limit the rate at which the regulated pollutant is emitted by regulated sources, but instead require nonperformance by sources; and/or
• Requiring that States adopt standards for existing units that are more stringent even than those EPA contemporaneously established under section 111(b) for the best state-of-the-art new units.

ELCON also believes that the Rule exceeds EPA’s authority under CAA section 111(d) by requiring States to adopt standards of performance for sources in source categories that are already regulated under section 112.

The Rule also abrogates authority granted to the States under section 111(d) by forbidding States from setting performance standards less stringent than the Rule’s national performance rates, and failing to authorize States “to take into consideration, among other factors, the remaining useful life” of an existing source.

Finally, the Rule violates rights reserved to the States by the US Constitution by reordering the mix of energy generation in such a way that States will have no choice but to carry out EPA’s preferred energy policy, regardless of whether the Rule is implemented through a state or federal plan.