Suits challenge EPA greenhouse gas standards for coal-fired power plants

The Utility Air Regulatory Group (UARG) and a power plant developer have filed separate lawsuits asking a federal appeals court to review the Environmental Protection Agency’s proposed New Source Performance Standards for greenhouse gas emissions from fossil fuel-fired power plants.

In its June 12 petition, UARG asked the U.S. Court of Appeals for the District of Columbia Circuit to declare that the standards would apply only to electric utility natural gas-fired combined-cycle plants. APPA is a member of UARG.

UARG also asked the court to declare that "that this final action [by EPA] establishes April 13, 2012, as a new source performance standard applicability date only for electric utility natural gas-fired combined cycle units." Under EPA's proposed new source performance standard, all new fossil-fuel-fired power plants, regardless of fuel type, would be required to meet an emissions rate standard of 1,000 pounds of CO2 per megawatt-hour, which roughly reflects the performance of a natural gas combined-cycle unit.

Las Brisas Energy Center LLC, which is building a 1.320-MW petroleum coke-fired plant in Texas, filed a similar suit June 11. EPA erred by proposing to lump steam generating units and combined-cycle units into an all-inclusive source category, without first making the prerequisite Clean Air Act Section 111 "significant contribution" finding for sources of greenhouse gas emissions subject to the proposed rule and without conducting an adequate economic impacts analysis, the company said.

While courts often reject petitions for review of proposed rules, the circumstances in this case are unique, Las Brisas told the court. EPA’s NSPS proposal "is final agency action—it determines legal rights or obligations and it represents the consummation of EPA’s decisionmaking process," the company said. Any source that had not commenced construction by April 13, 2012, is a new source immediately impacted by the standard even if EPA chooses to not finalize it, Las Brisas said.

The cases are Utility Air Regulatory Group v. U.S. EPA (12-1252) and Las Brisas Energy Center LLC v. U.S. EPA (12-1248). —ROBERT VARELA