US court rejects state, industry challenge to EPA NOx rule
Washington (Platts)--12Apr2004
The US Court of Appeals for the District of Columbia Circuit has rejected a state and industry challenge to the Environmental Protection Agency's formula for projecting generating capacity growth rates used to develop nitrogen oxide emission limits for power plants in 22 states and the District of Columbia. The states, joined by Alabama Power and the industry-led Utility Air Regulatory Group, filed multiple challenges to EPA's capacity growth-rate methodology, arguing, among other things, that EPA's calculations were too conservative and failed to take into account higher growth forecasts compiled by the North American Electric Reliability Council. More generous growth-rate projections would allow the so-called "upwind" states--earlier found by EPA to be responsible for contributing to high NOx levels in downwind states--to increase their maximum NOx emissions. The appeals court in 2001 ordered EPA to better explain it methodology for determining growth rates, saying that the agency had failed to show that its model was a reasoned approach. In a May 2002 remand response, the agency said it would retain its model for projecting generation growth, but would provide a fuller explanation to satisfy the court's concerns. Shortly after EPA made its announcement, West Virginia and Illinois, joined by industry, asked the court to review the response, saying EPA's projections were unsupportable and unreasonable, despite the expanded explanation. The plaintiffs also argued that EPA had failed to give parties an opportunity to comment on the remand response. While the court agreed that EPA erred in not proving an opportunity to comment, it found that the petitioners "have not shown a substantial likelihood that the rule would have been significantly changed" had comments been permitted. Further, the court ruled that because the petitioners failed to raise issues over legitimacy of EPA's projection methodology, including its failure to consider NERC estimates, when the agency was developing the modeling program or in earlier court challenges, they could not now raise new issues. This story was first published in Platts real-time news and market reporting service Platts Electricity Alert (http://electricityalert.platts.com ).
Copyright © 2004 - Platts, All Rights Reserved