Coal Plant Permit Blocked

The Environmental Protection Agency must consider greenhouse gas emissions when it issues permits for new coal-fired power plants, according to a recent legal ruling by the agency's Environmental Appeals Board.

Coal-fired power plants today provide one-half of the nation's electricity and 30% of the U.S.'s carbon dioxide emissions. The environmental group Sierra Club, which brought the appeal, heralded the decision as a "huge victory" that would stymie construction of new coal-fired power plants. The decision puts more heat on Congress and the new Administration to determine how CO₂ should be regulated.

The appeals board considered an application for a 110-MW coal-fired power plant proposed by the Deseret Power Electric Cooperative to be built in Utah. When approving the permit application last year, EPA did not consider CO₂ emissions, the board noted, and said it should have.

The Sierra Club argued to the board that a U.S. Supreme Court decision last year required EPA to regulate CO₂ as a pollutant under the Clean Air Act (C&EN, April 9, 2007, page 9). Although the board did not go that far, it did say EPA, as a minimum, must consider CO₂ along with other pollutants under the Clean Air Act and explain why CO₂ should or should not be controlled. The board then sent the permit decision back to EPA for reconsideration.

The board also urged EPA to establish an overarching, national position on CO₂ emissions, particularly considering the "multiplicity of permit proceedings" for coal-fired plants. So far, the agency has refused to address CO₂ emissions, no matter the source.

More than 80 permit applications are pending for proposed coal-fired power plants, says Sierra Club spokeswoman Virginia Cramer. All of these, she says, could be affected by the ruling.

"EPA can issue a CO₂ regulation, which we would like to see happen," Cramer adds, "or EPA can come up with some new reason for not doing so, which might be difficult since its previous reasons have been rejected. Either way we are probably looking at several months or even a year for that process to happen."

Such a move would have broad implications for all CO₂ generators, including chemical manufacturers. For this reason, industry groups filed six briefs supporting EPA's position in this case, including one by the chemical industry's lobbying arm, the American Chemistry Council.

In analyzing the ruling, utility organizations focused on the fact that the board remanded the decision back to EPA for further consideration. "A ruling in support of regulation (under the Clean Air Act) would have turned American industry on its head by forcing inappropriate and inflexible CO₂ regulation across the country," said Rich Alonso, who represents power plant developers and is a lawyer with Bracewell & Giuliani.

Meanwhile, President-Elect Barack H. Obama just last week restated his campaign pledge to support legislation to reduce CO₂ emissions.