Cross-State Air Pollution Rule (CSAPR)

ALEC’s Cross State Air Pollution Rule Policy Guide

Regulatory Update and Specific Actions

April 10, 2012:

On April 13, the Court of Appeals for the District of Columbia Circuit will hear arguments on EPA’s CSAPR.  At the end of 2011, the D.C. Circuit stayed the CSAPR pending a decision on the merits.  In the case, EME Homer City v. EPA, industry and state petitioners assert several grounds for the invalidity of the rule – including that EPA improperly imposed Federal Implementation Plans without first allowing upwind states to develop their own plans, and that the agency’s method of determining the extent of upwind states’ “significant contribution” to downwind nonattainment relied on a cost-based test invalidated by a prior D.C. Circuit decision.  The court is likely to issue a decision sometime this summer.

 

February 27, 2012:

The National Rural Electric Cooperative Association (NRECA) and several others have joined in a lawsuit asking a federal court to strike down CSAPR. The industry petitioners involved in Homer Electric Generation v. EPA include NRECA, Dairyland Power Cooperative, East Kentucky Power Cooperative, Southern Mississippi Electric Power Association, Sunflower Electric Power Cooperative and Western Farmers Electric Cooperative. The power associations believe CSAPR to be “one of the most costly, burdensome, and arbitrary rules ever issued by EPA.”

 

Feb 9, 2012:

The EPA has made slight adjustments to CSAPR. The changes are in the form of two different rules, the CSAPR Final Revisions Rule and the CSAPR Direct Final Rule. The Final Revisions Rule revises state budgets for Florida, Louisiana, Michigan, Mississippi, Nebraska, New Jersey, New York, Texas, and Wisconsin and new unit set-asides for Arkansas and Texas. This action revises unit-level allocations for Alabama, Indiana, Kansas, Kentucky, Ohio and Tennessee to better account for utility consent decrees. Of greater consequence is the amendment to the assurance penalty provisions for all states within the programs so they start in 2014 instead of 2012. This was done in order to help increase the opportunity for market-based compliance options in the early years of the program.

Action: Submit comments on the proposed amendments of the rule. Comments can be filed at http://www.regulations.gov/

 

February 1, 2012

U.S. Senators Pat Toomey (R-Pa), Bob Casey (D-Pa) and nine U.S. House members from Pennsylvania’s delegation sent a bipartisan letter to the EPA regarding the effects of CSAPR on the state’s 15 circulating fluidized bed (CFB) coal refuse power plants and the more than 1,000 people they directly or indirectly employ. Despite the EPA admission of the environmental benefits of such plants there was no exception made for them in CSAPR, causing them to be subjected to emission thresholds that the Pennsylvania EPA reports they will not be able to meet with any degree of economic feasibility.

 

December 30, 2011:

A last-minute ruling by the U.S. Court of Appeals for the District of Columbia delayed the January 1, 2012 effective date of the Cross State Air Pollution Rule. The ruling delays the CSAPR until the Court can make a final decision on the regulation which is expected to be heard by April.

Action: Pursue all legal means for addressing the rule including filing appeals of EPA rules or filing interventions of amicus briefs.

 

December 2011:

The EPA added five states to CSAPR’s required summertime smog reductions: Iowa, Michigan, Missouri, Oklahoma, and Wisconsin. Along with those states already subject to this part of the rule, these five states will now have to greatly reduce nitrogen oxide emissions from power planets during smog season. Kansas was also mentioned by the EPA as a major contributor of summertime nitrogen oxide emissions, but it was not included “because of the status of Kansas’ state implementation plan (SIP) for ozone”.

 

November 14, 2011:

The White House Office of Management and Budget (OMB) have begun its review of a final rule to expand the number of states covered by the Cross-State Air Pollution Rule. The final rule, which was proposed alongside the final CSAPR in September of this year, is expected to add Oklahoma to the list of covered states.  In addition the rule would require Iowa, Kansas, Michigan, Missouri, and Wisconsin to control ozone-season NOx emissions (these five states are already required to reduce annual NOx emissions under the CSAPR).

 

November 9, 2011:

Senators Joe Manchin (D-W.Va.) and Dan Coats (R-Ind.) introduced the “Fair Compliance Act” to create reasonable timelines and benchmarks for utilities to comply with the Cross State Air Pollution Rule. Additional cosponsors include Sens. Bob Corker (R-Tenn.) and Ben Nelson (D-Neb.).  The legislation would extend the compliance deadline for the Cross-State Air Pollution Rule by three years and the deadline for the Utility MACT rule by two years. This means both would fall on January 1, 2017.

 

October 6, 2011:

The U.S. EPA proposed amending cross-state emissions rules for power companies today, easing off on pollution caps for Texas and nine other states. The proposed changes would also affect power plants in New York and New Jersey by giving those states greater leeway to trade pollution allowances among power producers. The modifications to a rule issued in July are based on changes in data received from states and utilities, according to the EPA.

Action:  Submit comments on the proposed amending of the rules. The proposed amendment can be found here or here. Comments can be filed at www.regulations.gov.

 

September 2011:

The U.S. House of Representatives voted to approve an amendment to H.R. 2401, the Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) Act that would delay implementation of the Cross-State Air Pollution Rule until its full economic impacts can be assessed. Implementation of the rule would have to be delayed at least an additional six months after the Aug.1, 2012 deadline for completing the economic impact analysis. Most Democrats in the House opposed the amendment, and its prospects in the Democrat-controlled Senate are grim. In addition, the White House has threatened to veto the full bill.

 

September 2011:

The states of Alabama, Florida, Kansas, Nebraska, Oklahoma, South Carolina, Texas and Virginia, along with several private companies, are suing the EPA in federal court in order to halt the implementation of the Cross-State Air Pollution Rule. Seven separate cases have been filed, which have been consolidated under the first-filed case, EME Homer City Generation, L.P. v. Envtl. Prot. Agency, No. 11-1302.

Action:  Pursue all legal means for addressing the rule including filing appeals of EPA rules or filing interventions of amicus briefs.

Resources:

Cross-State Air Pollution Rule Talking Points. American Legislative Exchange Council. October 10, 2011

Coal Fired Plants Likely to Close as a Result of EPA Regulations. Institute for Energy Research. October 7, 2011

Out of Thin Air EPA’s Cross State Air Pollution Rule. Committee on Science, Space and Technology Hearing. September 15, 2011.

Impacts of the Cross State Air Pollution Rule on the ERCOT System. Electric Reliability Council of Texas. September 1, 2011.

EPA’s Regulatory Train Wreck: Strategies for State Legislators. American Legislative Exchange Council. February, 2011.

Lack of Benefits From the Regulatory Train Wreck. American Legislative Exchange Council. December, 2011.

Is the Cross State Air Pollution Rule Even Needed? American Legislative Exchange Council. December, 2011.

EPA’s Pretense of Science: Regulating Phantom Risks. Texas Public Policy Foundation. May, 2012.