CoA Asks EPA to Delay Rule
New Materials Call Into Question EPA’s Fundamental Assumptions
Cause of Action joined the Institute for Liberty, Americans for Prosperity, and the Center for Rule of Law in asking the Environmental Protection Agency to reassess certain assumptions it made in its proposed rule entitled National Emission Standards for Hazardous Air Pollutants From Coal and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-
A reliability assessment by Office of Electric Reliability (“OER”) of the Federal Energy Regulatory Commission (“FERC”) and other materials that became available after the close of public comment in this matter raise issues of central relevance to the rulemaking. These materials cast doubt on the fundamental assumptions underlying EPA’s “appropriate and necessary” finding, and major aspects of its proposed Utility MACT rule that impact electric reliability. They demonstrate in particular that EPA “entirely failed to consider an important aspect of the problem” before it, namely the proposed rule’s impact on regional and local electric reliability and the combined impact on reliability of EPA’s rulemaking agenda.
The groups asked the EPA to delay its rule-making timetable in order to digest the information they presented, as well as to consider the North American Electric Reliability Corporation’s (“NERC”) long-term reliability assessment due in November 2011, which will be the first cumulative assessment of EPA’s rulemaking agenda to evaluate the localized reliability impact of the proposed Utility MACT rule.
CoA Executive Director Daniel Epstein stated:
CoA’s concerns as petitioner focus on two issues: first, the costs and harms to jobs and second, the lack of transparency involved in the rule-making process.
As for the issue of costs, Senator Inhofe (R-OK) recently indicated that the EPA’s Utility MACT rule would risk plant closures, increase electricity rates, and destroy as much as 1.4 million current jobs. Forty-percent of electric capacity in the United States is based on coal; the EPA rule, without re-opening comments to consider new facts, represents an assault on affordable energy.
Second, the EPA, by burying studies by the Office of Electric Reliability and FERC as well as impatiently avoiding the North American Electric Reliability Corporation study, ignores that electric reliability is a local issue and needs to be assessed at the regional and local levels to ascertain likely shortfalls and bottlenecks. EPA has committed to a rushed rulemaking schedule that will not allow it to consider North American Electric Reliability Corporation’s report—which will be the first report by any organization to assess the local impact of EPA’s Utility MACT.
There are also transparency concerns involved, which relate directly to legal requirements that EPA rules present a “reasoned analysis.” Senator Inhofe requested that EPA Administrator Lisa Jackson clarify the extent to which EPA has worked with a number of agencies on the issue of electric reliability. According to Senator Inhofe, “EPA has failed to collaborate with FERC to consider how Utility MACT will affect electric reliability. . . . FERC Commissioner Moeller went as far as to say that ‘the Commission has not acted or studied or provided assistance to any agency, including the EPA.’”
EPA reported this year that the Agency and the Federal Energy Regulatory Commission (FERC) were jointly modeling the potential for coal-fired power plant closures prompted by Utility MACT. However, as FERC’s response to a May 17 letter from Senator Lisa Murkowski (R-AK), Ranking Member of the Senate Energy Committee, revealed, nothing as extensive as joint modeling has occurred.
Cause of Action is a 501(c)(3) nonprofit, nonpartisan public interest firm that uses public policy and legal reform strategies to ensure greater transparency in government, protect taxpayer interests and promote civil and economic freedoms.
Politico’s Morning Energy Report: CoA Files Amicus Brief re: EPA
Read the full story here. Politico
“The Institute for Liberty, Americans for Prosperity, Center for Rule of Law, Cause of Action and National Black Chamber of Commerce are also worried about the effect of EPA’s final utility MACT rule for mercury and air toxics, which is due out Dec. 16. In an amicus brief filed Tuesday in the U.S. District Court for the District of Columbia, the groups say EPA needs another year to study the rule’s impacts on electric-grid reliability because the agency has rushed into a rulemaking without a clear understanding of how many power plants will close and what the effect will be on power generation.”
CoA Files Amicus Curiae Brief in EPA Case
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Asks Court to Extend EPA Rule-Making Deadline for MACT Utility Rule
Cause of Action, along with the Institute for Liberty and the Center for Rule of Law, filed a motion in Federal Court supporting the Utility Air Regulatory Group's motion to modify an EPA rulemaking timeline. Specifically, CoA seeks to participate in the EPA's “Utility MACT” rulemaking to bring to the Agency's attention recently released materials that cast doubt on its fundamental assumptions concerning Utility MACT's impact on reliable electric service a
nd, those assumptions being no longer reliable, the complete absence of data or information supporting the Agency's approach of ignoring reliability. Particularly, EPA assumes that its Proposed Rule would not impair reliability and ended its analysis there. Yet a detailed preliminary assessment undertaken by the Office of Electric Reliability of the Federal Energy Regulatory Commission demonstrates that Utility MACT is likely to cause far greater retirements of generating capacity than projected by EPA and pulls the legs out from under EPA's assumption of continued reliability.
According to a consent decree entered in this case, the EPA currently has until November 16, 2011 to promulgate final emissions standards, not nearly enough time to consider the new evidence the groups have brought forth. Thus, CoA and the other groups asked the court to extend that deadline in order for the EPA to take into account the new studies.
Image courtesy of Flickr user benchilada.