Publication of the Environmental Protection Agency’s (EPA’s) final Mercury and Air Toxics Standards (MATS) in Thursday’s Federal Register means that the three-year compliance period mandated under the Clean Air Act will begin in 60 days, on April 16, 2012. Thursday’s publication also kicked up a storm of reactions and prompted several legal challenges.
All coal- and oil-fired electric generating units will need to comply with the MATS requirements within three years, by April 16, 2015, but the EPA left the door open for extensions, saying it was “encouraging permitting authorities to make a fourth year broadly available for technology installations—and if still more time is needed, providing a well-defined pathway to address any localized reliability problems should they arise.”
This means that the first potential additional year for compliance would be made available by state authorities to address reliability concerns, such as building replacement generation or completing transmission upgrades that are needed due to the retirement of existing capacity. The second extension year could be authorized on a case-by-case basis under the EPA’s non-binding “enforcement policy” to bring “reliability critical units” into compliance with MATS requirements.
Following publication of the rule on Thursday, Sen. James Inhofe (R-Okla.), ranking member of the Senate Committee on Environment and Public Works, filed a joint resolution of disapproval of the MATS (also known as the Utility MACT rule) under the Congressional Review Act (CRA). That bill is a mid-1990s law that provides for an expedited Senate floor procedure to overturn executive agency regulations by a simple majority vote, but it has worked only once.
If passed by both chambers and signed into law, the joint resolution could effectively send the rule back to the EPA to be rewritten with direction from Congress. Inhofe aides have speculated that a vote could occur as soon as spring.
Experts are not convinced the measure will be successful. Sen. Rand Paul (R-Ky.) failed to obtain needed votes last November when he used the CRA in an attempt to overturn the Cross-State Air Pollution Rule, a rule since stalled by a court decision. But last October, the House passed the EPA Regulatory Relief Act of 2011 (H.R. 2250) by a vote of 275-42, with 19 Democrats voting “yay.” That bill, which sought to limit the federal agency’s rules limiting toxic air pollutants from commercial and industrial boilers and thwart the EPA from proposing a new standard for at least 15 months after enactment, was blockaded in the Senate.
"The United States Senate can look forward to having one more opportunity to stand up to President Obama’s war on affordable energy: I am introducing a legislative measure that will put a halt to the Obama-EPA’s Utility MACT rule—one of the most expensive environmental rules in American history, second only to his proposed cap-and-trade rules that failed to pass legislatively,” Inhofe said in a statement.
The EPA’s touted health benefits are “virtually nonexistent,” Inhofe claimed. “In reality, Utility MACT is designed to kill coal. As EPA admits, this extension of Obama’s cap-and-trade agenda will cost American families up to $11 billion in electricity rate increases (over 11 percent increase, on average), and destroy up to 1.4 million jobs.”
Publication of the MATS in the Federal Register also starts the countdown for filing petitions for review challenging the MATS rule, as well as petitions for reconsideration of the rule, note legal experts. “All judicial petitions for review must be filed in the United States Court of Appeals for the District of Columbia Circuit by April 16, 2012,” say VanNess Feldman lawyers Britt Fleming, Stephen Fotis, and Kaitlin Gregg.
Last week, the National Mining Association said it had filed for review with the U.S. Court of Appeals for the District of Columbia. The U.S. Chamber of Commerce and other business groups have also filed federal lawsuits challenging the rules. “It is expected that the rule will be challenged on many fronts by the power sector as well as other affected groups,” the lawyers say.
Sources: POWERnews, Sen. James Inhofe, VanNess Feldman