EPA’s Proposed NSPS Rule for GHGs Is Finally Published in the Federal Register; I’m Still Skeptical

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EPA’s Proposed New Source Performance Standards for greenhouse gas emissions from new sources was finally published in the Federal Register on Wednesday.  At least fundamentally, it seems unchanged from the proposal released last September.  It is still based on the conclusion that carbon capture and storage is feasible and represents BSER – the best system of emission reduction – for fossil fuel-fired electric steam generating units.

Really?  Does anyone other than EPA think CCR is feasible, at least at this point?  After the September release of the proposal, an EPA Scientific Advisory Board work group stated that:

the scientific and technical basis for carbon storage provisions is new science and the rulemaking would benefit from additional review.

Apparently, EPA did not agree, but the skepticism by the SAB may be important.  In recent years, a number of cases have emphasized the importance of SAB’s views to EPA’s prospects for surviving judicial challenges to regulations of a highly technical nature.  This regulation may well be another one of those cases.  However much discretion EPA is entitled to receive from the courts, this just seems borderline nuts.  A better question would be whether CCR will ever be feasible.

What’s really going on here is classic technology-forcing – with one significant difference from most historical examples.  As I noted when the proposal was issued, in those examples, such as the banning of lead from gasoline, the underlying technology being regulated, i.e., the internal combustion engine, was still critical to the economy.  It wasn’t going away and the market had to solve the problem.  The same may not be the case with coal-fired power plants.  Thus, the difference is that EPA is forcing the technology, but doesn’t care if the forcing actually works.  If the alternative is that no new coal plants are ever again built in the United States, I am sure that that would be just fine with EPA.

Indeed, that’s a position held by a lot of people at this point, but it still seems disingenuous – and legally suspect – to accomplish that end by declaring CCR to be feasible when it is not.