EPA Issues Revised Draft NSPS for Carbon Emissions From New Power Plants: It’s All About Technology Forcing


Last Friday, EPA reissued its draft NSPS addressing carbon emissions from new power plants.  It’s not actually that different from the prior proposal, which would have required all new fossil-fuel plants to meet a 1,000 lbs CO2/MWh standard.  The new proposal would require new large gas plants to meet the 1,000 lbs/MWh standard, but would relax the standard to 1,100 lbs/MWh for small gas plants and for coal plants.  Coal plants would, in the alternative, have the option of choosing a more stringent 1,000-1,050 lbs/MWh standard, averaged over seven years, if they want the flexibility to attain the more stringent standard over more time.

EPA’s fact sheet states that:

Current and planned implementation of CCS projects, combined with the widespread availability and capacity of geological storage sites, makes it clear that the technology is feasible.

Feasible, maybe.  Available now?  Not so clear.  Which brings us to what this regulation is all about – technology forcing.  I don’t think EPA can demonstrate that CCS really is feasible now.  Its demonstration is based on one plant that is uniquely situated and one that is not yet operating and received significant financial incentives that are not likely to be widely available.

In response to industry criticism regarding infeasibility, David Hawkins of the NRDC said that:

[The industry] said the same thing about sulfur dioxide scrubbers, they said the same thing about nitrogen oxide control devices, they said the same thing about catalytic converters, they said the same thing about taking lead out of gasoline.  In every instance, when the government moved forward and set sensible standards based on the evidence that was in front of the agency, industry demonstrated that it could comply.

Fact is, he’s right.  Regulation opponents traditionally do not have very much confidence in markets when it comes to responding to regulations, but there are plenty of studies showing that actual compliance costs are almost less than estimates suggested, because, once the regulations were in place, markets developed more cost-effective means of compliance than were originally assumed.

It’s not obvious to me, however, that this situation is really analogous to those cited by Hawkins.  A lot of people have been working on CCS for a long time and it sure hasn’t been commercialized yet.  Moreover, we still needed internal combustion-powered cars in the 1970s; it’s not clear that we need new coal-fired power plants in the 2010s.

Of course, that may be EPA’s point.  War on coal or not, EPA’s view is probably, and not unreasonably, the simplistic one – if the industry can make coal as clean as gas, so be it.  If not, so be it.


Written by:


Foley Hoag LLP - Environmental Law on:

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