In a recent blog, I explained how the Environmental Protection Agency is hybridizing disparate provisions of the Clean Air Act in order to engineer greater regulatory authority for itself. EPA is using these “Franken-regs” to trump the states’ rightful authority on visibility improvement policy and impose billions of dollars of emissions controls for benefits that are literally invisible.
Yesterday, for example, EPA relied on this hybrid authority to impose a federal regulatory plan on Oklahoma over the Sooner State’s objection. (A copy of the federal register notice is available here). In February, Oklahoma submitted a visibility improvement plan that would require fuel switching from coal to natural gas at six power plants by 2022, but EPA rejected this approach in March. In its stead, EPA proposed a federal plan that would require almost $2 billion in emissions controls, in addition to fuel switching. EPA’s proposed plan was finalized yesterday.
Although the Clean Air Act clearly gives states primacy over EPA in decision-making for visibility improvement, Oklahoma is one of three states subject to a federal plan. In August, EPA imposed a plan on New Mexico that costs $740 million more than the state’s plan. In September, EPA proposed a federal plan for North Dakota. All three states are challenging EPA in federal court.
On October 17, EPA proposed to disapprove Arkansas’s visibility improvement plan, using the same dubious legal logic that the Agency employed to run roughshod over New Mexico, North Dakota, and Oklahoma. Earlier this week, I submitted comments to the EPA on its proposal. They are available here. They detail the regulatory inconsistencies of EPA’s regulatory regime for visibility improvement. In a nutshell, EPA is evaluating state plans by different criteria, without explaining why it is doing so. Under administrative procedure law, EPA must respond to each unique comment. I look forward to reading the tortuous reasoning the Agency will use to justify its actions.