WaPo Wonkblog Makes Case that EPA’s Carbon Pollution Standard Is Illegal

On Friday, Washington Post Wonkblog published a notable article about “clean coal,” defined by reporter Max Ehrenfreund as “[t]he suite of technologies that the industry hopes could one day remove carbon dioxide from exhaust at coal-fired power.”

The most mature of these “clean coal” technologies is known as carbon capture and sequestration (“CCS”), although it has never been outfitted on a coal-fired power plant of even moderate size. The purpose of the Washington Post article was to throw cold water on recent media reports regarding the promise of clean coal. According to Mr. Ehrenfreund, the case for CCS in the U.S. is “weak,” because the technology is “exorbitantly expensive.”

Somewhat bizarrely, the Wonkblog reporter failed to mention that the Environmental Protection Agency in February proposed the Carbon Pollution Standard, a requirement for CCS on all new coal-fired power plants. Due to a unique provision of the Clean Air Act, the regulation goes into effect upon proposal. As a result, all new coal-fired power plants require “clean coal” technology—the very technology that is the subject of the Washington Post Wonkblog article. You’d think that this would qualify as “news.”

Whatever the reason for this rather conspicuous omission, I want to draw attention to the reporter’s use of language, which offers an important legal lesson. Mr. Ehrenfreund wrote that CCS is “exorbitantly” costly. This modifier is supremely apt; it is the exact word chosen by the D.C. Circuit Court of Appeals* to describe an impermissible requirement pursuant to the provision of the Clean Air Act that authorizes the aforementioned Carbon Pollution Standard. See Essex Chemical Corp. v. Ruckelshaus, 486 F. 2d 427 at 433 (D.C. Cir. 1973). As such, if the costs of carbon capture and sequestration are in fact “exorbitant,” then the regulation is illegal.

In the instance, Mr. Ehrenfreund is spot-on: carbon capture and sequestration is undoubtedly “exorbitantly” expensive and is, therefore, outside the legal bounds of the Clean Air Act. Consider, for example, the only “clean coal” CCS project now being constructed in the U.S., the 580 megawatt Kemper power plant in Mississippi. After many cost-overruns, the current project tab is $5.2 billion. This is well more than 5 times the cost of a comparably-sized coal-fired power plant equipped with the most advanced controls for conventional pollutants.

While the courts have never put a precise number on what constitutes impermissible, “exorbitant” costs, I’ve performed a comprehensive search of the D.C. Circuit’s review of the Clean Air Act regulatory regime that produced the Carbon Pollution Standard, and the largest compliance cost considered by the court was “approximately 12 percent of the investment for the total facility”.  See Portland Cement Association v. Ruckelshaus, 486 F. 2d 375 at 387 (D.C. Cir. 1973) by comparison, carbon capture and sequestration evidently adds at least 500 percent to the investment for a new coal-fired facility. Clearly, when it comes to costs, we’re talking about a whole different ballgame than anything the court has reviewed.

*the D.C. Circuit is the exclusive court of review for a Clean Air Act Section 111(b) New Source Performance Standard. This is the section that authorizes the Carbon Pollution Standard.