Frisbees to Flatulence

I recently outlined the top four regulatory obstacles facing existing U.S. coal-fired power plants in the coming years: the impact of carbon reduction regulations, restrictions on once-through cooling water, the potential classification of coal ash as a hazardous waste, and the utility MACT (maximum achievable control technology) rule.

My list is not comprehensive, as there are many other regulatory efforts under way. For example, the Environmental Protection Agency (EPA) is actively using provisions of the Clean Air Act (CAA) to require the reduction of emissions that contribute to regional haze and is making “reasonable progress” toward the national goal of “Class 1” visibility conditions. Recently, the EPA proposed a federal implementation plan to improve the visibility in parts of Oklahoma that requires coal plant owners to add a scrubber to a plant or switch to natural gas (see “EPA Requiring Three Oklahoma Coal Plants to Scrub or Use Gas“). Out West, the same regional haze requirements are being used as leverage to force upgrades on plants that surround the Grand Canyon. A good case could be made that the EPA’s regional haze enforcement should be on my short list of near-term challenges.

However, focusing only on these near-term challenges may cause the industry to miss another growing regulatory imbroglio: National Ambient Air Quality Standards (NAAQS) for CO2.

Next Up: NAAQS

I’ve previously discussed the EPA’s Endangerment Finding, which was followed by its legally dubious Tailoring Rule. The Tailoring Rule set arbitrary limits on levels of CO2 emissions, much different from the limits required under the CAA, that would, according to the EPA, trigger prevention of significant deterioration (PSD) regulation to prevent “significant deterioration” of air quality in areas that are already in conformance with NAAQS (CAA Sec. 106). Compliance is demonstrated in terms of the issuance of Title V permits for new plant construction and Title I permits for operating plants, both for stationary sources.

What you probably aren’t aware of is that CAA Sec 108 also sets criteria that trigger the first phase of NAAQS rulemaking. Specifically, CAA Sec 108 requires the EPA to institute rulemaking should an air pollutant from “numerous or diverse mobile or stationary sources” cause or contribute to “air pollution” that “may reasonably be anticipated to endanger public health or welfare.” The EPA’s Endangerment Finding, released in December 2009, automatically triggered Sec 108, although with little notice taken by the power industry. It’s now time to pay attention.

NAAQS, unlike the more familiar PSD construction and operating permits, is an allowable pollution concentration “ceiling” standard. That means that the EPA is required to determine the allowable concentration of a pollutant in the atmosphere, for example, in parts per million and then regulate new and existing sources of emissions to remain within that limit. The EPA has stated many times that it believes that greenhouse gas emissions (predominately CO2) harm public health and welfare, as stated in its Endangerment Finding: “Elevated concentrations of greenhouse gases in the atmosphere may reasonably be anticipated to endanger the public health and to endanger the public welfare of current and future generations.”

Left undefined is the EPA’s interpretation of the term “elevated concentrations.” The context found in the Endangerment Finding conclusions, and many other recent documents related to CO2 regulation, is that “elevated” means those concentrations that are man-made and that were added to the atmosphere above those found in preindustrial concentrations.

You may take issue with this definition of “elevated emissions,” but numerous environmental groups agree with it. The most outspoken are the Center for Biological Diversity and Both advocate for reducing the level of atmospheric CO2 to 350 ppm or lower; “preindustrial” is defined as 280 ppm by the Intergovernmental Panel on Climate Change (IPCC) in its 2007 climate change reports. In fact, more than 100 environmental groups have endorsed a petition filed with the EPA, days after the release of the Endangerment Finding, to initiate rulemaking that would set the NAAQS standard for CO2 (and methane and nitrous oxides) at the preindustrial level of 350 ppm.

Compliance Is Impossible

The atmospheric concentration of CO2 today is approximately 386 ppm. According to the IPCC, to maintain global warming at 2.1C, the concentration of CO2 in the atmosphere must be stabilized at less than 450 ppm, although reaching that level of CO2 in the atmosphere is generally considered inevitable within the next two decades. It is important to recognize that reducing atmospheric levels of CO2 to preindustrial levels requires not only a very significant cut in ongoing emissions and a reduction in the annual growth of those emissions but also, in effect, a “cleansing” of the atmosphere of emissions released in past years, an impossible task to be sure.

A recent Newsweek article examined the mix of technologies required to return the world to preindustrial atmospheric concentrations of CO2. The article, “We Can’t Get There from Here,” describes the enormous level of research and development and global capital investment that would be required, based on several outrageous scenarios (one requiring 10,000 new nuclear plants!), to reduce emissions to 350 ppm by 2050. The author’s conclusions, after talking with experts in the field, is reflected in the article’s title.

Even so, the short compliance schedules required by NAAQS don’t allow the EPA much maneuvering room when setting timetables, certainly not 2050 and beyond, as estimated by the IPCC and Newsweek. Rather, because the ubiquitous CO2 would, by definition, not meet PSD limits in any locality in the U.S., the entire U.S. would automatically become a one large nonattainment area for CO2. That means, per the CAA, the health-based CO2 NAAQS would be triggered, giving the EPA exactly five years (plus one possible five-year extension) to institute rulemaking necessary to bring the U.S. back into compliance.

Even if the U.S. throttled back its CO2 emissions to about one-third of what they are today (about those produced by our economy in 1970), those reductions would have virtually no effect on globally rising concentrations of CO2, much less reduce the atmospheric concentrations to preindustrial levels. Remove the entire U.S. economy from the global CO2 emissions picture and the reduction in global atmospheric emissions concentrations would be barely discernable, especially within 10 years.

Economic Devastation

So, what happens should the EPA uphold the petition? Does the EPA rely on another Tailoring Rule (the existing rule yet to be vetted by the courts)? Or does the EPA immediately begin regulating CO2 under the Non-Attainment New Source Review (NNSR) preconstruction permitting program, a much more restrictive program than the familiar NSR program, which sets 100 tons CO2/year as the cutoff for compliance?

There is another, much more insidious result when the NNSR is triggered: Lowest Achievable Emission Rate (LAER) standards kick in. LAER, unlike Best Available Control Technology (BACT), does not have a compliance cost standard. Also, if your existing or proposed plant is determined to be a major source (any source that emits more than 100 tons/year of CO2, which includes millions of sources), then you will be expected to “offset” your emissions by reductions in other areas (CAA Section 173). Unlike the European Union, where CO2 emissions can be offset with reduced CO2 projects completed in the developing world, any new project in the U.S. would have to offset by point source emissions reductions within the 50 states. And then there are provisions in the CAA that give downwind states leverage to force emissions reductions from sources in upwind states. You get the idea.

It’s abundantly clear that the CAA was not intended to be a tool to manage the reduction of CO2 from our environment nor a tool to be wielded by groups wishing to place our economy on life support in order to reach some ethereal and unachievable goal of CO2 concentration in the atmosphere. Setting NAAQS standards for CO2 would become a de facto moratorium on economic growth in the U.S.

Trouble Defining a “Pollutant”

If you take the time to look through the original briefs filed by the EPA with the Supreme Court in the Massachusetts v. EPA ruling that started the ball rolling on CO2 regulations, the EPA neglected to inform the court of its intention to use a “Tailoring Rule” to avoid what the EPA later called “absurd” results when applied strictly according to the CAA requirements. It’s obvious the EPA knew before the Supreme Court ruling what this next step in its plan to regulate CO2 would require. It’s unfortunate that the court found that the EPA had the authority to regulate CO2 while ignoring the legislative history of the CAA and the act’s clear focus on just the six criteria pollutants. I believe the Supreme Court will get it right at its next opportunity, although it may be a year or more before the myriad appeals are processed and a decision is rendered.

Supreme Court Justice Antonin Scalia’s dissenting opinion in Massachusetts v. EPA eloquently describes the possible end state of the EPA juggernaut to regulate CO2: “As the Court correctly points out, ‘all airborne compounds of whatever stripe,’ . . . would qualify as ‘physical, chemical, . . . substance[s] or matter which [are] emitted indoor otherwise ente[r] the ambient air.’ It follows that everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’ This reading of the statute defies common sense.”

—Dr. Robert Peltier, PE, is COAL POWER’s editor-in-chief.

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