Business Groups Intervene In EPA’s Appeals Board Utah CO2 Case

Mar 24: The National Association of Manufacturers (NAM) joined a legal brief supporting construction of a new power plant in Utah, arguing the U.S. EPA's permitting process should not be turned into a regulatory tool to control carbon dioxide (CO2) emissions. In an amicus brief submitted to the EPA’s Environmental Appeals Board, NAM endorses the EPA’s 2007 approval of a preconstruction permit for the Bonanza coal-fired power plant sought by the Deseret Power Electric Cooperative. The Sierra Club has appealed the approval, arguing that the EPA must limit CO2 emissions in the permit. The American Petroleum Institute and U.S. Chamber of Commerce joined the NAM in filing the brief in the appeals proceeding, In re: Deseret Power Cooperative (PSD Appeal No. 07-03).

The Deseret Power facility has also been the subject of an investigation of the House Committee on Oversight and Government Concern, Chaired by Representative Henry Waxman (D-CA) which held a hearing on November 8, 2007, regarding EPA Approval of New Power Plants: Failure to Address Global Warming Pollutants. The hearing examined the implications of U.S. EPA's refusal to consider the global warming effects of a coal-fired power plant’s greenhouse gas emissions in a recent permitting decision in light of the recent U.S. Supreme Court decision in Massachusetts v. EPA [See WIMS 4/2/07]. On March 11, 2008, Waxman introduced H.R. 5575, to require new coal-fired electric generating units to use state-of-the-art control technology to capture and permanently sequester carbon dioxide emissions. The bill has been referred to the House Committee on Energy and Commerce, chaired by Representative John Dingell (D-MI).

Quentin Riegel, NAM Vice President for Litigation and Deputy General Counsel said, “A successful appeal by the Sierra Club would create an impassable regulatory gridlock that would overwhelm permitting authorities and bring new permits to a halt. Arguments to the contrary, the Clean Air Act does not allow the permitting process to be turned into an all-purpose weapon against new energy production.” Riegel said the Clean Air Act defined emissions from major stationary sources -- such as power plants -- in terms of traditional pollutants (e.g. NOx and SOx). Emissions of carbon dioxide are orders of magnitude larger, which means the EPA’s inclusion of CO2 in the permitting process would dramatically expand the number of facilities requiring EPA regulatory approval.

He said, “Big-box stores, schools, fast-food restaurants -- the number and type of facilities requiring EPA permits would explode if the Sierra Club gets its way. Even slight changes to these facilities or plans for new structures would require Clean Air Act pre-construction permits under the ‘Prevention of Significant Deterioration’ program.” The amicus curiae brief includes a legal analysis that demonstrates that the EPA’s regulations do not require “Prevention of Significant Deterioration” permits to address greenhouse gases. In addition, an opposite finding would create enormous practical difficulties, the brief argues.

EPA Administrator Stephen Johnson testified at the Waxman hearing last November and said, "...while EPA has been implementing voluntary programs aimed at reducing greenhouse gases for years, in the past several months we have been exploring the additional tools provided by the Clean Air Act to help us expand on the solid foundation we have built... EPA is actively evaluating how best to regulate technologies that may curb or otherwise address greenhouse gas emissions... While we continue to grapple with how best to address the challenge of global climate change, the Agency also has a legal responsibility to continue processing PSD preconstruction permit applications, such as that submitted over three years ago by Deseret Power... The August 30th PSD permit allows Deseret Power to move forward in providing a reliable and secure supply of electricity, while at the same time making use of a previously untapped reserve of waste coal."

Access a release from NAM (click here). Access a copy of the NAM brief (click here). Access the Environmental Appeals Board Deseret Power website with links to all of the extensive briefs and filings in the case (click here). Access the Waxman hearing website for links to all testimony, a webcast, overview and Chairman Waxman's opening statement (click here). Access legislative details for H.R. 5578 (click here). [*Energy, *Air, *Climate]