There has been major developments as a result of litigation, policy, rulemaking and legislation in the last few weeks relating to climate change and coal fired power plants. Some changes are a result of outstanding litigation. However, the most significant changes are indicative of the sea change that is occurring at the federal level under the Obama Administration relative to climate change.
Here is a review:
- EPA will not regulate mercury by cap and trade- EPA Administrator Jackson announced today that the Agency will be moving forward with rulemaking to regulate mercury emissions from coal plants. "President Obama’s EPA does intend to regulate mercury under section 112 of the Clean Air Act," said Jackson. Acting solicitor general Edwin S. Kneedler will drop the prior appeal of the decision in New Jersey v. EPA which struck down the Bush Administration cap and trade proposal for regulating mercury.
- NEPA reviews of climate change impact required for oversees projects- The Obama Administration has settled an outstanding lawsuit which sought to compel NEPA reviews of climate change impacts for oversees projects financed with federal money. Western cities and environmental groups alleged that Export-Import Bank of the United States and the Overseas Private Investment Corporation illegally provided more than $32 billion in financing and insurance to fossil fuel projects over 10 years without assessing whether the projects contributed to global warming or impacted the U.S. environment, as they were required to do under the National Environmental Policy Act (NEPA). The settlement will require NEPA reviews and will also require future reductions of greenhouse gases.
- BACT for coal plants does not mean IGCC– A Texas Appeals Court rejected a challenge to a permit for a new 800 mw pulverized coal plant. Appellants has argued the permit should have required IGCC technology as BACT instead of the proposed pulverized coal technology. Consistent with other Court decisions looking at BACT, the Court said control technologies under BACT must be applied to the proposed project which in this case was a pulverized coal plant.
- No Climate Change Legislation This Year- Senator Boxer released here principles for what must be included in the Senate version of climate change legislation. Senator Boxer said “Copenhagen is December…That’s why I said we’ll have a bill out of this committee by then.” However, any bill passing out the committee still must pass the full senate and be reconciled with the House bill. This schedule renders it impossible that cap and trade legislation will pass Congress in 2009.
- EPA begins review of California Waiver Decision- In a press release today, EPA announced they are beginning the review of the California waiver request to regulate greenhouse gas emissions from vehicles. I think this quote from the EPA press release pretty much tells you what the outcome will be – "EPA believes that there are significant issues regarding the agency’s denial of the waiver. The denial was a substantial departure from EPA’s longstanding interpretation of the Clean Air Act’s waiver provisions. "