EPA May Rely — In Part — on Projects Funded Under the Energy Policy Act to Justify the Greenhouse Gas NSPS. That’s Its Story and It’s Sticking To It


As those following EPA’s efforts to promulgate NSPS for greenhouse gas emissions from new fossil fuel-fired electric generating plants know, EPA has come under fire for basing its proposal on demonstrations of feasibility at projects that have received federal funding or tax credits under the Energy Policy Act of 2005.  Apparently, EPA is sufficiently concerned that they have prepared a Notice of Data Availability to be published in the Federal Register.  The NODA explains why the rule would not violate the Energy Policy Act.

In short (but explained at greater length in its accompanying Technical Support Document):

EPA’s preliminary interpretation of these provisions is that EPA may not rely on information from facilities that have received assistance under EPAct05, including being allowed tax credits under IRC section 48A, as the sole basis for a determination that a particular technology is the best system of emission reduction adequately demonstrated (BSER), but the EPA may rely on information from those facilities in conjunction from other information to support such a determination, or to corroborate an otherwise supported determination.

The TSD explains at some length the data and information on which EPA relied in concluding CCS is feasible.  EPA also identified which data and information do not rely on projects funded under the Energy Policy Act.

I think that EPA’s interpretation of the reach of the Energy Policy Act may well be correct.  My problem remains with the underlying feasibility determination.  All I really know is what I read in the trade press, but I’m skeptical that CCS will ever really be feasible – or that EPA cares one way or the other.


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Foley Hoag LLP - Environmental Law on:

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