CO2 rules: Now you see ’em, now you don’t

 

Smoke stacks are shown. | AP Photo

According to documents obatined from FOIA requests, the EPA has been changing its mind about CO2 regulations. | AP Photo

The Environmental Protection Agency’s apparent change of heart on plans to limit greenhouse gas emissions at existing power plants came during a White House review of the agency’s proposed greenhouse gas rule for new plants, according to documents obtained by POLITICO.

A draft version of the proposed rule for new plants’ emissions repeatedly references the agency’s controversial plans to eventually regulate greenhouse gases from existing plants.

But now agency officials say no such plans exist.

The plans were still alive in the draft proposal that EPA sent for review by the White House Office of Management and Budget on Nov. 7. “At a future date, EPA intends to promulgate emission guidelines for states to develop plans reducing [carbon dioxide] emissions from existing fossil-fuel-fired [electric generating units],” the draft says in the first of many references to future regulations for existing power plants.

EPA published its final version of the proposal in the Federal Register on Friday. POLITICO obtained the Nov. 7 draft — and a merged comparison of the two — through a Freedom of Information Act request.

The agency publicly announced carbon dioxide limits March 27 for new power plants only and made extensive legal arguments to exempt any existing plants undergoing major construction projects.

Requiring CO2 emission cuts from existing power plants could be especially costly and would inevitably fall mostly on comparatively dirty coal-fired plants. Republicans have called the recently proposed rule the “death of coal” and accused the EPA of planning to expand the rule to existing plants as soon as critics turn their backs.

Even EPA’s decision to regulate emissions from new plants isnot without controversy. Future coal-fired power plants will be required to employ costly carbon-capture technology to bring their CO2 emissions to the level of a combined-cycle natural gas plant.

EPA agreed to create the rule in a December 2010 settlement with several environmental groups, 11 states and two local governments.

The agency has said that setting standards for new plants comes in tandem with a statutory requirement to “establish emission guidelines that states use to develop plans for reducing emissions from existing sources,” according to a fact sheet released with the 2010 settlement. Those detailed guidelines for states may be less stringent than those for new sources but would include expected timelines, EPA said.

David Doniger, the chief global warming lawyer for the Natural Resources Defense Council, still expects the agency to act on standards for existing plants.

“Existing power plants are not covered by this standard but the Clean Air Act requires EPA to follow up with requirements for those sources too,” he said in March. “The proposal acknowledges this responsibility.”

The final document makes a single reference to a future rulemaking: Several hundred pages in, the final rule says the proposal to limit greenhouse gas emissions “will also serve as a necessary predicate for the regulation of existing sources within this source category,” under another section of the Clean Air Act.

But now, EPA officials are repeatedly going back to a new party line on greenhouse rules for existing plants: “No plans.”

“We don’t have plans to address existing plants,” Administrator Lisa Jackson told reporters when releasing the rule. But she hedged, adding that if the agency proposed such a standard, it would be after an extensive public process.

EPA air chief Gina McCarthy later echoed Jackson. “We just indicated that we have no plans right now,” McCarthy said at a House hearing when Rep. Joe Barton (R-Texas) asked her to elaborate on Jackson’s statement.

“Sounds like President Clinton saying ‘depends on what the definition of “is” is,’” Barton said.

EPA spokesman Brendan Gilfillan would not elaborate beyond pointing to McCarthy’s statement that the agency has “no plans to address existing power plants.” The White House did not comment.

EPA’s March announcement of the proposed standards for new plants came with significantly less fanfare than the Obama administration gave the release of EPA’s utility mercury and air toxics rule in December. At that time, Jackson held a packed news conference at a children’s hospital and President Barack Obama issued a video address of congratulations.

On the day of the March power plant announcement, the president was out of the country, and the news of the day was dominated by the Supreme Court’s consideration of the health care law.

In the rule’s November draft, mentions of plans to deal with existing power plants come up over and over again.

For example, this sentence appears on Page 2 of the draft but is deleted from the publicly proposed rule: “Clean Air Act Section 111 also requires regulation of existing sources of certain pollutants.” It adds that “regulation of new sources of those pollutants triggers a requirement that EPA also promulgate emission guidelines for existing sources.”

Standards for existing plants are not set in the same way as those for new plants, EPA explained in the draft. Instead, the Clean Air Act requires EPA to set a national standard and then calls “for states to develop plans that include standards of performance for those sources.” If states fail to develop a plan, the federal government must develop one for them, EPA notes elsewhere in the draft — another passage edited out of the final proposal.

“There are also opportunities to reduce emissions at existing fossil-fired plants,” EPA said in the draft it sent for White House review but not in the proposed rule. “For instance, the efficiency of much of the existing generation can be improved, lower emitting plants can be dispatched more often, and higher emitting plants can co-fire fuels, such as natural gas, with lower CO2 intensity.”

In the draft, EPA also said modifications to power plants would be covered by the future rulemaking. But the final version strikes that mention as well.

Among less dramatic changes, the final proposed rule added more specific language explaining a 30-year average emissions standard meant to allow some new plants using carbon capture and sequestration to avoid potential difficulties of using the relatively new technology.

The rule proposed in March also added lengthy legal justification for combining previously separate power sectors under one rule, which is the mechanism the agency used to tie CO2 limits for coal-fired power plants to the emission rates of combined-cycle natural gas facilities.

And the rule that emerged from White House review included new language clarifying EPA’s strategy for exempting units that begin construction within 12 months of Friday’s Federal Register publication.

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