A federal appeals court last week denied a motion from developers of new coal- and oil-fired power plants to force the Environmental Protection Agency (EPA) to finalize its reconsidered Mercury and Air Toxics Standards (MATS) for new sources by March and help them avoid a regulatory Catch-22 posed by a looming rule to curb greenhouse gas emissions in new plants.

The EPA had agreed on July 20 last year to reconsider new source emission standards contained in its February 2012–finalized MATS rule after it received several petitions from industry stakeholders expressing concerns about measurement issues related to mercury emissions. The EPA had then said it intended to complete the rulemaking by March 2013.

But even before this development, following the EPA’s promulgation of the final MATS rule in February, several developers of new power plants (including White Stallion Energy Center, Sunflower Electric Power Corp., Tri-State Generation and Transmission Association, Power4Georgians, Deseret Power Electric Cooperative, and Tenaska Trailblazer Partners) as well as pollution control equipment vendors and air emissions experts had simultaneously filed more than 30 different petitions for review challenging the MATS rule. The petitions were consolidated in the case White Stallion Energy Center, LLC v. EPA, No. 12-1100.

Petitioners told the U.S. Court of Appeals for the D.C. Circuit that if MATS requirements were not settled by March 1, it would exacerbate a regulatory dilemma they face as a result of the April 12, 2013, deadline to begin construction in order to avoid becoming subject to an unattainable federal greenhouse gas standard. In April 2012 the EPA proposed new source performance standards (NSPS) for greenhouse gas emissions that would prevent new fossil fuel–fired power plants from emitting more than 1,000 pounds of carbon dioxide/MWh, and that rule is expected to be finalized this March. Meanwhile, the EPA’s website projects that a final new source MATS rule will be published in the Federal Register in April 2013.

But in a one-page order last week, the D.C. Circuit denied the petitioners’ claims, saying that the EPA had “represented to the court” that it will complete the reconsideration proceeding by March 2013. "To the extent petitioners’ request for a rulemaking deadline is based on the period of delay prior to issuance of a proposed rule, it has become moot, as a proposed rule has now been published. To the extent the request for a rulemaking deadline is based on a claim of future delay in issuing a final rule, it is unripe for adjudication at this time," the court ruled on Jan. 7.

The federal appeals court last September granted the EPA’s motion in White Stallion Energy Center v. EPA to stay lawsuits challenging the new source MATS while the EPA reconsiders the rule.

Sources: POWERnews, EPA, U.S. Court of Appeals for the D.C. Circuit

—Sonal Patel, Senior Writer (@POWERmagazine)