Coalition of states threaten EPA with lawsuit over New Source Performance Standard delay

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By Justin Martino, Associate Editor, Power Engineering

A coalition of states and other government entities, led by New York Attorney General Eric Schneiderman, has sent of a letter of intent to file a lawsuit against the U.S. Environmental Protection Agency for failing to finalize the New Source Performance Standard for new power plants.

Schneiderman, joined by nine other states as well as Washington D.C. and New York City, sent EPA Acting Administrator Bob Perciasepe the notice Wednesday, providing 60 days notice before the suit is filed if no action is taken to resolve the issue. The EPA’s deadline for finalizing the NSPS, which would limit carbon dioxide emissions to 1,000 pounds per MWh for new power plants, was April 13. Under the Clean Air Act, the agency must issue the rule within a year of receiving public comments.

“Addressing emissions from power plants is critically important,” Schneiderman stated in a release. “Today’s notice makes clear that if the EPA does not promptly issue these rules, we will take legal action to hold the Agency to its commitment.”

The other states joining the action are Connecticut, Delaware, Maine, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont and Washington.

The EPA has also received a letter from three environmental groups expressing intent to sue the agency for failure to finalize the NSPS. The Environmental Defense Fund, the Sierra Club and the Natural Resources Defense Council sent a similar letter of intent on April 15, the same day the EPA confirmed it would be delaying the rule’s finalization.

“Numerous states and environmental organizations have requested standards to control dangerous greenhouse gas emissions from power plants for more than ten years,” the environmental groups stated in their letter to Perciasepe. “Our organizations have specifically sought the inclusion of greenhouse gas emission limits in the NSPS for power plants for nearly a decade, at least since our 2005 comments on EPA’s proposed revision of the power plant NSPS.”

According to EDF attorney Megan Ceronsky, many states have set carbon pollution standards and other policies to limit emissions from new fossil fuel power plants that provide a strong foundation for EPA action.

EPA spokesperson Alisha Johnson stated in an e-mail Monday the agency is reviewing more than 2 million public comments on the NSPS and has not set a timetable for any revisions. Many companies in the power industry have expressed concern the rule would prohibit the construction of new coal-fired power plants, limiting fleet diversity during a time of rising gas prices and questions about the transmission infrastructure for natural gas. The rule would not have affected the construction of new combined cycle natural-gas fired power plants.

The EPA had made an agreement in 2011 with Schneiderman and a coalition of states to issue greenhouse gas emission (GHG) standards for new, modified and existing power plants under the Clean Air Act. Finalizing the NSPS would have partially fulfilled the agreement, which resolved a lawsuit brought in 2006 challenging the EPA’s failure to comply with the legal mandate of the Clean Air Act to limit emissions of GHGs emitted by power plants, according to the New York State Office of the Attorney General.

The  two letters addressed to Perciasepe state the EPA both failed to perform its nondiscretionary duty to issue final standards for GHG emissions for new power plants and related emission guidelines for existing plants and that the agency unreasonably delayed creating standards of performance for new power plants and issuing emission guidelines for existing power plants. Both letters also provide the EPA a 60-day notice before filing suit for failure to perform its nondiscretionary duty and a 180-day notice before filing a lawsuit on unreasonably delaying the standards.

“Given the urgent need for agency action due to the adverse effects on human health and welfare from climate change already being experienced, any further delay by EPA in finalizing standards of performance and related emission guidelines for greenhouse gas emissions from power plants is unwarranted and unreasonable,” Schneiderman wrote in his letter to Perciasepe.

The rule was introduced in March 2012, while Lisa Jackson was serving as the EPA administrator, and was written by the agency’s Office of Air and Radiation. Gina McCarthy, the current head of that office, has been nominated to serve as the EPA’s administrator. Her nomination is currently being considered by the U.S. Senate.

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