Litigation to force the Environmental Protection Agency (EPA) to issue final greenhouse gas (GHG) rules has been stalled on reports that the White House could soon announce major action on climate change.

Reports suggest President Obama could unveil a new climate change plan in July. The plan would address key energy projects as well as EPA emissions guidelines for new and existing power plants. But industry experts suggest that while the EPA’s regulatory authority could be crucial to implement the proposal, the timing of the release could complicate the nomination of Gina McCarthy for EPA administrator. McCarthy’s nomination, which Republicans have threatened to block until it receives more information about the process the agency uses to design air pollution rules, is unlikely to be considered until July at the earliest.

The EPA postponed issuance of its final New Source Performance Standards (NSPS) for GHG emissions by April 13 because it was reportedly still reviewing more than 2 million comments on its proposal. Acting EPA administrator Bob Perciasepe has, meanwhile, said that the agency could begin work on a rule for existing power plants next year.

But the missed legal deadline on April 13 prompted 11 states and New York City to threaten a lawsuit against the EPA if it did not finalize the rules within 60 days of the April 13 deadline, saying the EPA’s failure to finalize GHG standards for new power plants and emission guidelines for existing power plants violated the Clean Air Act. In 2010, those states—New York, Connecticut, Delaware, Maine, New Mexico, Oregon, Rhode Island, Vermont, Washington, the Commonwealth of Massachusetts, and the District of Columbia—reached a settlement with the EPA, forcing the agency to agree to promulgate GHG rules for new and existing power plants.

Environmental groups—the Natural Resources Defense Council (NRDC), the Sierra Club, and the Environmental Defense Fund (EDF)—have also sent a separate notice to the EPA, also threatening litigation.

On Tuesday, however, the lawsuits had reportedly been halted on rumors that President Obama could soon unveil climate change plans. As Melissa Grace, a spokeswoman for New York State Attorney General Eric Schneiderman, told POWERnews: "Due to public reports that the President will be announcing major action on climate change very soon, the Attorney General has decided to postpone a lawsuit on this matter for a short period of time." Grace declined to comment on the anticipated timing of that action, however.

In his February State of the Union address, President Obama pledged that his administration would enact executive actions if Congress did not pursue a "bipartisan, market-based solution" to tackle climate change. In March, the President’s Council of Advisors on Science and Technology (PCAST) outlined six key components it believes should be central to the administration’s strategy to address climate change. These include continued efforts to "decarbonize the economy," with an emphasis on the power sector, and removal of regulatory obstacles (such as lower financing costs) to "level the playing field" for renewables, carbon capture and storage (CCS), nuclear power, and energy-efficiency technologies.

PCAST’s document calls for an expansion of shale gas production, continued implementation of Clean Air Act requirements on sulfur dioxide and nitrogen oxide and mercury, and new proposed GHG standards for existing power plants. It also urges renewed support for CCS deployment and sustained research on next-generation technologies. (Look for a feature on next-generation CCS technologies in the August issue of POWER, also available online Aug. 1.)

"Achieving low-carbon goals without a substantial contribution from nuclear power is possible, but extremely difficult," it says, notably. "Nuclear power involves large capital investments recovered over long time periods. Even if current market conditions driven primarily by low natural gas prices persist for a decade or more, it is important to eliminate obstacles now that would impede renewed commitments to nuclear energy as energy economics shift over time."

Last week, meanwhile, senators from states that suffered major damage from Superstorm Sandy urged President Obama to follow up on his climate change pledges and finalize the GHG NSPS. The letter from Sens. Robert Menendez (D-N.J.), Chuck Schumer (D-N.Y.), Kirstin Gillibrand (D-N.Y.), Chris Murphy (D-Conn.), and Richard Blumenthal (D-Conn.) was sent a day after environmental groups kicked off a campaign (spearheaded by actor Robert Redford) to press the White House to direct issuance of the EPA’s final GHG rules.

Also on Tuesday, the attorneys general of 21 other states in a letter to Acting EPA Administrator Perciasepe urged the EPA not to enter "any form of settlement negotiations to resolve the concerns" outlined by the 11 northeastern states and NYC. "Air quality is of equal concern to all States. Appropriate process should not be subjugated, and effective policymaking cannot be forced to fruition, by threatening litigation," said the letter from Nebraska Attorney General Jon Bruning. The letter was co-signed by attorneys general from Kentucky, Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Michigan, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and West Virginia.

The 21 states requested "notice" and opportunity to participate in the settlement of litigation by the 11 states, saying allegations that the EPA failed to perform the nondiscretionary duty of finalizing standards of performance for GHGs from new power plants were "incorrect."

The EPA had conducted a review of the standard of performance for new power plants and proposed standards for GHG emissions on April 13, 2012, the 21 states noted. "Although the EPA has yet to finalize these standards, actual revision of the standards is discretionary under [the Clean Air Act], and occurs only ‘if appropriate.’ Because the review has been conducted in a timely fashion and revisions are discretionary, suit is inappropriate under [the Clean Air Act’s Section 304] for failure to perform non-discretionary duty," the states wrote.


Sources: POWERnews, NY AG Office, PCAST, Office of the Nebraska AG

Sonal Patel, Senior Writer (@POWERmagazine, @sonalcpatel)

Update from original June 18 story: Adds that attorneys general from 21 states urged the EPA to decline settlement regarding GHG NSPS