Environmental Protection Agency

Post image for Primer: EPA’s Power Plant MACT for Hazardous Air Pollutants

Today, the Environmental Protection Agency proposed a major rule to regulate power plants under the Hazardous Air Pollutants (HAP) Section 112 of the Clean Air Act.

This post is a primer on this consequential and controversial decision.

Section 112 of the Clean Air Act

  • In 1970, the Congress added Section 112 to the Clean Air Act, requiring that the EPA list and regulate Hazardous Air Pollutants (HAPs) that could “cause, or contribute to, an increase in mortality or an increase in serious irreversible or incapacitating reversible illness.” The Congress ordered the EPA to establish standards for HAPs that provided “an ample margin of safety to protect public health.”
  • Due to difficulties interpreting what should constitute “an ample margin of safety,” the EPA largely ignored Section 112 for two decades.
  • In 1990, the Congress, frustrated with the slow pace of HAP regulation, amended the Clean Air Act to remove much of EPA’s discretion over the implementation of Section 112. Lawmakers listed 189 pollutants for regulation. They also legislated HAP pollution controls, known as Maximum Achievable Control Technology (MACT) standards. The Clean Air Act amendments set a “MACT floor” (i.e., a minimum HAP pollution control) at “the average emission limitation achieved by the best performing 12 percent of the existing sources.”
  • Section 112 MACT standards apply to both new and existing stationary sources.
  • Notably, the Congress required the EPA to proceed with caution before it regulated Electricity Generating Units (“EGUs,” or power plants). The 1990 Clean Air Amendments mandated a study on the public health threats posed by EGU HAP emissions, and the EPA Administrator was authorized to proceed with the regulation of HAPs from EGUs only after evaluating the results of this study, and concluding that “such regulation is appropriate and necessary.”

[click to continue…]

Post image for President Obama’s War on Western Coal Demand

The Environmental Protection Agency is using an obscure aesthetic regulation in the Clean Air Act to run roughshod over western states.

East of the Mississippi, President Barack Obama’s regulatory crackdown on coal threatens to shutter up to 40 gigawatts of electricity generation. Yet due to a variety of factors (the low sulfur content of western coal, low population density, and newer plant stock), coal-fired plants west of the Mississippi are in a much better position to withstand the regulatory onslaught .

In order to target western coal, the Environmental Protection Agency is leveraging a long ignored provision of the Clean Air Act designed to improve visibility, known as the Regional Haze rule. Notably, this is an aesthetic regulation, not a health-based regulation. In practice, eastern states are exempt from Regional Haze requirements, because the EPA allows states to meet this aesthetic regulation in the course of complying with health-based regulations.

[click to continue…]

Post image for Update on CEI’s Lawsuit against the EPA over Climate Regulations

This post was written by Competitive Enterprise Institute General Counsel Sam Kazman

EPA’s global warming regs are being challenged in a complex set of cases pending in the U.S. Court of Appeals for the D.C. Circuit.  At issue are rules ranging from EPA’s underlying endangerment ruling to its decrees on stationary and vehicle greenhouse gas emissions.  A number of petitions for reconsideration were filed with the agency as well, several of them based on the Climategate materials.  EPA denied those petitions last summer in a voluminous document which is also part of the litigation.

Among those suing EPA are states, trade associations, public interest groups (including CEI) and individual companies. If you count each separate action brought by each petitioner (including CEI) against each rule, there are 85 cases.

The petitioners tried to have the regulations put on hold until the court decides the cases, but their motion was denied back in December.  Both sides have filed suggestions on how the briefing of the cases should proceed, since the court will require almost everyone to file joint briefs.  Once the court issues its schedule and format for the briefs, the cases will start moving forward again.

Inside the Beltway

by Myron Ebell on March 12, 2011

in Blog, Features

Post image for Inside the Beltway

The House of Representatives took the first step on Thursday toward reclaiming its authority to regulate greenhouse gas emissions.  The Energy and Power (yes, that really is its name) Subcommittee of the Energy and Commerce Committee marked up and passed H. R. 910, the Energy Tax Prevention Act, which is sponsored by Committee Chairman Fred Upton (R-Mich.) and Subcommittee Chairman Ed Whitfield (R-Ky.).  H. R. 910 would pre-empt EPA from regulating greenhouse gas emissions using the Clean Air Act unless and until explicitly authorized to do so by Congress.

Actually, there was no marking up.  The Democrats opposed to the bill offered no amendments, and the bill was passed on a voice vote.  The full Committee has scheduled a mark-up of the bill next Monday and Tuesday. That means H. R. 910 could come to the House floor by early April.  There is no doubt that it will pass the House by a wide margin.  The only question is how many Democrats will end up voting for it.  My guess is that quite a few Democrats are worried about getting re-elected and will therefore vote for it.

The subcommittee meeting was one long whine by minority Democrats.  Rep. Henry Waxman (D-Beverly Hills), the ranking Democrat on the full committee and chief sponsor of the Waxman-Markey cap-and-trade bill that failed in the last Congress, said that H. R. 910 would codify science denial.  Rep. Ed Markey (D-Mass.) chimed in that he was worried the Republicans would try to repeal the law of gravity.  Rep. Jay Inslee (D-Wash.) instead thought that Republicans were trying to repeal the first law of thermodynamics and cause children all over the world to get asthma.

Preventing asthma is now the principal reason brought forward by the global warming alarmists in Congress to cripple the U. S. economy with energy-rationing regulations.  Here is what I learned from a ninety-second internet search: “The majority of people with asthma notice that cold, dry air causes more symptoms than mild-temperature or hot, humid air.” Of course, some of the world’s most eminent climate scientists have recently found that global warming is causing a lot of cold weather.

[click to continue…]

Update on the States

by William Yeatman on March 7, 2011

in Blog

Post image for Update on the States


Offshore wind energy is so expensive that even the Democratic-controlled State Legislature is balking at the price tag of Maryland Governor Martin O’Malley’s (D) proposed “Maryland Offshore Wind Energy Act.” The legislation would force the state’s investor owned utilities to minimum 20-year contracts for 400 megawatts to 600 megawatts of offshore wind power. Governor O’Malley’s office estimates that the legislation would cost ratepayers about $1.50 a month, but this projection is based on unrealistically optimistic assumptions. Independent analyses peg the costs at up to $9.00 a month. The disparity in estimates has elicited a negative response from O’Malley’s own party in the legislature: the Washington Post reported this week that two Democratic lawmakers key to the bill’s prospects have suggested they need more time to vet the legislation than is left in this year’s session.


By a bipartisan vote of 28 to 10, the Kentucky State Senate last week passed a resolution exempting the coal industry from EPA regulation, according to the AP. The non-binding resolution, which was introduced by Sen. Brandon Smith (R), is now before the House of Representatives.

[click to continue…]

Last week Tim Huber of the Associated Press broke news on yet another front being opened in Obama’s war on Appalachian surface coal mining (I blogged about the other front yesterday).

The AP story pertained to a controversial rule derivative of the 1977 Surface Mining Control and Reclamation Act (SMCRA), known as the “100 feet buffer rule. As its name would suggest, it basically prohibits mining waste from being deposited within 100 feet of intermittent or perennial streams. According to the AP article, the Obama Administration’s preferred interpretation of this rule would cost 7,000 mining jobs, almost exclusively in Appalachia. And that’s the Department of the Interior’s own estimate, which is likely a lowball.

Background: The 100 feet buffer rule was largely ignored until the 1990s, when environmentalists initiated lawsuits alleging that valley fills constitute mine waste, and are therefore in violation of the buffer rule.

[Valley fills are a necessary byproduct of surface mining in the steep terrain of Appalachia. When you dig up coal, the loosened dirt and rock, known as overburden, have more volume than when they were compacted. Much of this overburden is used to reconstruct the approximate original contour of the mined terrain. However, there is almost always “extra” overburden, and this excess dirt and rock is placed in the valley at the base of the mine. This is known as a valley fill]

The problem with the environmentalists’ reasoning is that SMCRA clearly “contemplates that valley fills will be used in the disposal process,” to quote the Fourth Circuit Court of Appeals. So it doesn’t make sense that the law would both authorize and prohibit the same practice. President George W. Bush put the issue to rest in his second term. His Department of the Interior undertook a formal rule-making to exclude valley fills from the 100 feet buffer rule.

President Barack Obama, however, had campaigned on a promise to “bankrupt” the coal industry, and shortly after assuming office, he had the Department of the Interior try to reverse the Bush rule change, and thereby subject the Appalachian coal industry to an army of environmental lawyers. But a federal court slapped down this effort, because the Interior Department had tried to impose the rule change without a formal rulemaking. Thus rebuffed, the administration promised to revisit the issue within two years, and instead used a different tack to inhibit Appalachian coal production.

Which brings us to the AP story. Evidently, the Obama administration has been working on a new version of the 100 feet buffer rule, and their preferred choice is a doozy. According to the AP,

The office, a branch of the Interior Department, estimated that the protections would trim coal production to the point that an estimated 7,000 of the nation’s 80,600 coal mining jobs would be lost. Production would decrease or stay flat in 22 states, but climb 15 percent in North Dakota, Wyoming and Montana.

As Appalachia is the only region where valley fills are used frequently in coal mining, it stands to lose the most. Then again, that’s the point. This would be the second major business-crushing regulation tailor made for Appalachian coal country (to learn more about the first, click here and here).