EPA Requests Additional Comments on Proposed Carbon-Emission Regulations for Existing Sources

"The art of effective listening is essential to clear communication, and clear communication is necessary to management success."

James Cash Penney

On Oct. 30, the U.S. Environmental Protection Agency (EPA) published its "notice of data availability" or NODA for its proposed regulations for existing fossil-fueled electric generating units, also known as the “Clean Power Plan.” Earlier, I wrote about the general outline of the proposed regulations. It has been receiving comments from citizens and stakeholders ever since.

The purpose of the NODA was to identify new issues that participants in the public comment made with respect to the Clean Power Plan that also raised new issues. EPA reviewed the public comments received thus far and identified specific comments that deserved serious consideration, but were not part of the initial notice of the proposed rule. As a result, EPA decided that it needed to identify these issues publicly and seek other comments regarding these suggested changes to the proposed rule.

  • “Glide Path” of emission reductions from 2020 to 2029: The proposed rule anticipates that starting in 2020 and concluding in 2029, states will be able to gradually implement carbon emission reductions so that by 2030, the state would be in compliance with the particular state’s target emissions. During the public comment period, EPA identified two new approaches. One would allow states to take credit for early, pre-2020 reductions to lengthen the glide path toward compliance. The other would allow phasing of the increased use of lower-carbon power sources (e.g., natural gas), just as the proposed rule allows the phasing in of zero-emitting power sources (e.g., renewable energy) and energy efficiency measures.
  • Altering the "building block" model: The proposed rule provides states with suggestions on how states can reduce carbon emissions and identifies four "building blocks," but does not require that a state adopt any of them specifically. Instead, the proposed rule anticipates that each state would use the building blocks in such a fashion that makes the most sense for that particular state based on its own unique circumstances, but yet meet EPA’s required “Best System of Emission Reduction” or BESR. Building Block Two anticipates the increased use of natural gas to supplant more carbon intensive energy sources. The public comments revealed that EPA’s view of the use of natural gas may be too restrictive and ignored other ways natural gas could be used to reduce carbon emissions, such as including natural gas combined cycle plants or co-firing natural gas with coal in boilers. Finally, comments also suggested that states should be allowed to develop regional approaches to meet BSER, like being able to use renewable energy created elsewhere, but used in the particular state, to demonstrate its use of renewable energy in place of fossil-fuel generated power.
  • State-specific carbon goals: The proposed rule provides states with specific goals to meet, although it lets them decide how they will get there. But some comments reflected the concern that calculation of state-specific goals is not consistent, as each state’s current energy mix is different and that the proposed rule does not account for a particular state’s activities to reduce carbon emissions prior to the issuance of the rule. Further, others argued that using one year (2012) as a base does not reflect a broad enough sample size to account for particular variants that may skew the final goals. Finally, the proposed rule fails to require a one-to-one reduction of fossil fuel-related energy production on a pro rata basis as renewable energy and energy efficiency measures come on line, which would some argued would defeat the purpose of the proposed rule altogether.

Under the Administrative Procedures Act, federal agencies must collect public comments concerning proposed regulations and address the concerns raised in them before issuing a final rule, which sometimes includes considering new issues raised in that process. EPA recently extended the public comment period to Dec. 1, 2014, because of the amount of comments it received and also because the comments raised new issues not considered before. Those wishing to comment on the proposed rule should do so prior to the deadline.

The NODA demonstrates that EPA is considering comments from all sectors seriously. While it is likely that virtually no one from industry, consumers or the environmental community will be happy with the ultimate result, EPA will identify and respond to all concerns raised during the public comment period, if not incorporate them directly in final rulemaking.

It appears that we are heading very shortly toward a final rule. Even in the event of a change in the control of the U.S. Senate, it is doubtful that this train will be stopped in the station. Leaving aside the environmental gains expected by the proposed rule, some have suggested that the regulations will actually create jobs and boost the economy by stimulating investment in energy projects, others are less than enthusiastic.

Which position is right and to the extent it is right will be known in due time. Whatever the final rule looks like, it will be partially the product of the comments received by EPA.

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