EPA Continues Delay on Greenhouse Gas Performance Standards for Power Plants

The Environmental Protection Agency has missed another deadline for proposing the New Source Performance Standard (NSPS) for greenhouse gas (GHG) emissions from electric utility steam generating units subject to 40 C.F.R. part 60, subpart Da ("EGUs").  This is now the third time the EPA has missed a deadline for promulgating the proposed standard.

As described in more detail here, EPA is required to establish the performance standard under a settlement with the Sierra Club, Natural Resources Defense Council, Environmental Defense Fund and several states.  After missing previous court-imposed deadlines, the EPA set a late January 2012 deadline for itself, which has now passed.  While EPA continues to claim that release of the proposed rule is imminent, there is no clear indication when it will actually be released.  The settlement agreement requires the EPA to publish the final rule by May 26, 2012, a deadline which now will almost certainly be missed given the delays in releasing the proposed rule.

These delays present a double-edged sword for the entities that may be affected by the regulation.  While  businesses are generally not in favor of the imposition of onerous regulations, they also value the ability to plan for the future.  Given the recent barrage of administrative, judicial and legislative actions aimed at developing, changing or halting efforts to regulate air emissions, there is a lot of uncertainty and seeming instability in the regulatory scheme, which presents problems for regulated entities seeking to remain in compliance.

Presumably the EPA is taking so long to propose the EGU NSPS to avoid a train wreck similar to that surrounding the passage of the Boiler MACT rules.  In addition, EPA has indicated that the development of “emissions guidelines” that the states will turn into enforceable standards for existing EGUs pursuant to Section 111(d) of the Clean Air Act (as opposed to federal performance standards that will apply to new and modified units under Section 111(b)) is contributing to the delay because it is a complicated and relatively novel process.  However, there have been some indications from EPA that these emissions guidelines regarding existing EGUs may not even be included in the proposed rule that is expected to come any day now and may be proposed separately at a later date.

 For more information on this or other related environmental law questions, please contact Dan Cory.