Is EPA Panicking over Pending GHG Regulations?

Evidence is mounting that the EPA’s greenhouse gas regulations for coal-fired power plants are in disarray.

The agency is working on two separate rules: (1) the Carbon Pollution Standard for new coal-fired power plants and (2) Clean Air Act section 111(d) “guidelines” for existing coal-fired power plants.

The Carbon Pollution Standard was proposed in January, and would effectively ban the construction of new coal-fired power plants. This gives you an idea of what EPA Gina McCarthy means when she talks about “flexibility.” Energy developers can either spend 500% more on a coal plant, by installing carbon capture and sequestration, or they can build a gas plant. The “choice” is theirs alone.

The Carbon Pollution Standard was announced in September, yet it wasn’t until January that the rule was published in the Federal Register. In between, it was subject to interagency review coordinated by the Office of Management and Budget. During this review, OMB asked EPA a very simple question: What is the rationale for promulgating the Carbon Pollution Standard?

Here’s EPA’s answer,

On June 25, 2013 President Obama issued the “Presidential Memorandum — Power Sector Carbon Pollution Standards” directing the EPA to issue a new proposal by no later than September 20, 2013 and to issue proposed carbon pollution standards, regulations or guidelines, as appropriate, for modified, reconstructed and existing power plants by no later than June 1, 2014. By statute, in order to issue emission standards for existing sources, the Agency must first propose standards of performance for new sources.

This is an amazing response. EPA basically concedes that the only reason it issued the Carbon Pollution Standard (for new power plants) was so that it could get to regulating existing power plants, in accordance with the President’s climate policy. That is, the Carbon Pollution Standard is merely a means to an end. And because there is no genuine purpose for the rule, other than to beget a subsequent rule, EPA had to fabricate a rationale out of whole cloth, which is really hard to do. I detailed the rule’s many mortal flaws in a post earlier this week, “The Top 6 Reasons EPA’s Carbon Pollution Standard Is Illegal.”

Yet there has also been a spate of news raising doubts about the implementation of the agency’s 111(d) guidelines to regulate greenhouse gases from existing coal-fired power plants. Yesterday, for example, Politico’s Morning Energy reported that there’s confusion regarding the rule’s timing at the highest ranks of the Agency.

Per Politico,

EPA insists it is on track to meet the June 1 deadline to propose a greenhouse gas emissions rule for existing power plants after the agency’s #2 hinted Thursday that it may slip past that date. Speaking at a White House solar event, Deputy EPA Administrator Bob Perciasepe reportedly said the rule would come out in “late June, maybe even the end of June.” But EPA spokeswoman Liz Purchia said in an email that Perciasepe “misspoke when talking about 111(d) timing.” She added: “EPA is on track to meet the June 1 goal that’s part of the President’s Climate Action Plan. The proposal is still in interagency review. We are not going to comment on anything that may or may not be part of what’s released on June 1.”

We know that the proposed 111(d) guidelines for new coal-fired power plants are now undergoing interagency review led by the Office of Management and Budget. Yesterday, InsideEPA’s Dawn Reeves reported that the proposal is raising eyebrows among those who have seen it.

According to Reeves,

EPA’s proposal to limit greenhouse gas (GHG) emissions from the existing power fleet, currently undergoing White House review, is said to seek comment on an extremely wide range of options including many ‘beyond-the-fence’ measures, such as energy efficiency, that many critics oppose, multiple sources familiar with the draft say.

…

Some sources familiar with the draft says that the breadth of the options being proposed suggests officials have not yet agreed on how aggressive they believe they can be and are far behind schedule on the landmark regulatory effort. They say that the sheer range of options in the draft suggests it is “undeveloped,” a “struggle,” and “a cry for help.”

Another source says EPA is “all over the map” in the proposal with “many requests for comment” on categories of approaches, including whether one is better or more legally defensible.

This source calls the draft “a free for all” that suggests the officials “don’t know what they want to do, that they’re throwing it all against the wall to see what sticks” and that they are “not as far along as they wish they were in choosing a route but still want to meet, as closely as possible, the president’s timeline” in the Climate Action Plan.

Wow! Multiple sources suggest the rule is aimless and far behind schedule.

Again, the big question is: Why is EPA’s greenhouse gas regulation for existing power plants in reportedly poor condition?

I think there are two answers. One is political and the other is legal.

Politically speaking, the President was clearly unwilling to risk any capital on greenhouse gas regulations during his first term. This is, mind you, the man who ran to the right of Mitt Romney on energy during his re-election campaign. As a result, EPA’s rules faced a tight timeline.

Legally speaking, the matter is simple: The Clean Air Act was designed to regulate conventional pollution, not a ubiquitous “pollutant” like carbon dioxide. Indeed, the statute’s primary regimes were crafted at a time when global cooling was a more pervasive fear than global warming. Because greenhouse gases are so fundamentally different from the pollutants that Congress actually intended to regulate with the passage of the Clean Air Act (and its subsequent amendments), GHGs comport with the Act most uneasily. As a result, the agency is walking a legal tightrope. In practice it’s not easy to bend a law to the President’s second term legacy building.