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APPA and UARG seek review of final Clean Power Plan rule


From the October 26, 2015 issue of Public Power Daily

Originally published October 23, 2015

By Paul Ciampoli
News Director

The American Public Power Association and the Utility Air Regulatory Group on Oct. 23 filed a petition with the U.S. Court of Appeals for the District of Columbia Circuit asking the court to review the Environmental Protection Agency's final Clean Power Plan rule, which aims to reduce carbon dioxide emissions from existing power plants.

Separately, APPA, UARG and several other parties on Oct. 23 asked the U.S. Court of Appeals for the District of Columbia Circuit to stay the final rule.

The final CPP rule was published in the Federal Register on Oct. 23, clearing the way for parties to file legal action related to the CPP with the U.S. Court of Appeals for the D.C. Circuit.

Motion for stay

In the rule, the EPA "asserts that a mere five words in a rarely used provision" of the Clean Air Act —“best system of emission reduction”— "give it unprecedented authority to require states to restructure the nation’s energy industry by reducing the electricity generated by certain types of facilities (primarily coal-fired power plants) and by shifting that generation to EPA-favored facilities (e.g., wind and solar facilities) that emit less CO2," the motion said. "This shift will substantially increase costs to the public and jeopardize the reliability of the nation’s electricity system," APPA, UARG and the other parties argued.

The EPA claims to find authority for this extraordinary rule in Section 111(d) of the CAA, "which authorizes the states to establish “performance” standards for existing sources in a category (such as fossil fuel-fired electric generating units), and requires those standards to be 'achievable' through 'adequately demonstrated' emission-reducing technological upgrades (e.g., scrubbers) or operational processes (e.g., switching from high-sulfur coal to low-sulfur coal) at each such source," the motion said.

"That is what the statute says and that is how EPA has consistently interpreted it for decades. Now EPA purports to find in Section 111(d) new authority to force CO2-emitting EGUs to curtail their 'performance' or to shutter entirely in order to accomplish EPA’s mandated emission reductions of up to 48 percent, depending on the state," the motion noted.

"This is because no single unit in the source category can achieve EPA’s standards while continuing to perform, even through the use of technological controls or operational processes," APPA, UARG and the others said.

"To avoid electricity shortages, that lost capacity must be made up by lower- or-zero emission facilities that EPA prefers. EPA conservatively forecasts the rule will force nearly 11 gigawatts of coal-fired EGUs to shutter in 2016 alone, the amount needed to keep the lights on in more than two-and-a-half million homes."

APPA, UARG and the other parties to the motion for stay said that EPA, "however, cannot show that Congress intended to allow any federal agency—much less one not even tasked with setting energy policy— to so radically restructure the nation’s electricity system, bypassing all federal and state energy laws and the regulators that have overseen the industry for over seventy years."

EPA "concedes that the rule was born out of frustration with congressional inaction. Our constitutional structure, however, as well as settled principles of administrative law, requires an agency to have clear statutory authority from Congress before it adopts a sweeping regulation imposing billions in costs," the motion for stay added.

The parties said they will "suffer immediate and irreparable harm absent a stay because planning, permitting, and constructing new generation takes years, and thus must begin now to meet the Rule’s compliance obligations in 2022. The public interest also decisively favors a stay, as the Rule will cause substantial electricity rate increases and jeopardize reliability, while doing little to reduce global greenhouse gas emissions. This court should stay the rule while it considers the petitions for review."

APPA is a member of UARG.

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