Greenhouse Gas Rule for Power Plants Delayed

On September 15th, the EPA confirmed it will not meet a court ordered September 30th deadline to propose greenhouse gas emissions limits for power plants. This is the second time the EPA has delayed the proposal, which was originally supposed to have been issued in July 2011.

In April 2007, the U.S. Supreme Court ruled that greenhouse gases (GHG), including carbon dioxide, are potentially air pollutants covered by the CAA. (Massachusetts v. EPA, 549 U.S. 497 (2007)) The court further ruled that the EPA was required to determine whether emissions of GHGs from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. The EPA subsequently made such findings, which was a prerequisite to finalizing GHG standards for light-duty vehicles.

In March 2010, the EPA Administrator signed a notice conveying the agency’s decision to regulate light duty vehicles. This in turn triggered CAA permitting requirements for stationary sources. For the first time, GHG will become subject to “actual control” requirements thus making GHG subject to regulation under the CAA.

As part of a settlement agreement in the New York v. EPA lawsuit, with New York, California, Connecticut, Delaware, Maine, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, Washington, Washington, D.C., City of New York, Natural Resources Defense Council, Sierra Club and Environmental Defense Fund, the EPA committed to establishing new source performance standards for new and modified natural gas, oil, and coal-fired electric generating units (EGUs).

Under the agreement, final regulations are due by May 26, 2012, so proposed regulations were supposed to be issued by July 26, 2011. The July deadline was extended to September, but the EPA has not yet sent a proposed rule to the White House Office of Management and Budget for review. That review process can take up to 90 days. On September 15th the confirmed that it will not meet the current September 30th deadline, but said that a new timetable for issuing the regulations would be released “soon.”

Updates on the GHG permitting rules are available on the GLLF Regulatory Watch website.

This post was authored by GLLF staff attorney Emily Kelchen.