Philadelphia
135 South 19th St
Suite 300
Philadelphia, PA 19103
215.567.4004
Fax 215.567.5791
members@cleanair.org
www.cleanair.org
Harrisburg
107 North Front St.
Suite 113
Harrisburg, PA 17101
717.230.8806
Fax 717.230.8808
November 8, 2013
Wilmington
Community Service Building
100 West 10th St.
Suite 106
Wilmington, DE 19801
302.691.0112
Comments of the Clean Air Council on Proposed Carbon Pollution Standards for Existing
Sources of Carbon Pollution
Thank you for accepting these comments from the Clean Air Council (“the Council”) on
EPA’s proposed carbon pollution standards for new power plants. The Council is a non-profit
organization in Philadelphia that has been working since 1967 to carry out our mission of
protecting everyone’s right to breathe clean air.
The global concentration of carbon dioxide in our atmosphere has reached 400 parts per
million for the first time in recorded history, according to data from the Mauna Loa Observatory
in Hawaii this summer. So I am here today to say to the United States Environmental Protection
Agency – we need to be more aggressive in reducing ALL greenhouse gases. The
Intergovernmental Panel on Climate Change (IPCC) issued a report finding that it is extremely
likely that human influence on climate caused more than half of the observed increase in global
average surface temperature from 1951 to 2010.1 IPCC draft documents indicate that “[t]here is
high confidence that this has warmed the ocean, melted snow and ice, raised global mean sea
level and changed some climate extremes in the second half of the 20th century.”2 The National
Flood Insurance Program is currently running a $28 billion deficit because of high payouts from
hurricanes Katrina, Irene, Ivan, and Sandy.3 The IPCC draft report also finds that the rising
temperatures caused by climate change will make it harder for crops to thrive, threatening food
supplies globally. The report finds that some of these effects are already beginning to take place
1
Working Group I Contribution to the IPCC Fifth Assessment Report, Climate Change 2013: The Physical Science
Basis, Summary for Policymakers (Sept. 27, 2013), available at:
http://www.climatechange2013.org/images/uploads/WGIAR5-SPM_Approved27Sep2013.pdf.
2
Justin Gillis, Climate Panel Cites Near Certainty on Warming, N.Y. TIMES Aug. 19, 2013, available at:
http://www.nytimes.com/2013/08/20/science/earth/extremely-likely-that-human-activity-is-driving-climate-changepanel-finds.html.
3
http://www.washingtonpost.com/blogs/wonkblog/wp/2013/10/30/congress-tried-to-stop-subsidizing-homes-inflood-zones-it-was-harder-than-they-thought/?wprss=rss_blogsandcolumns.
in some regions.4 The IPCC also warns that sea levels could conceivably rise by more than three
feet by the end of this century if emissions of greenhouse gases are not curbed.5 Man-made
carbon dioxide emissions and the climate change they give rise to are an imminent and global
threat to the health and safety of human populations.
While the scale of the carbon emissions problem is global, its effects are also being seen
locally, right here in Philadelphia. Pennsylvania emits a full percentage point of the world’s
carbon dioxide emissions. Carbon dioxide increases temperature and it accelerates the water
cycle. In the words of EPA Administrator Gina McCarthy, “[o]ne thing we know for sure: when
the weather gets hotter, smog gets worse, and people of all ages suffer.”6 And indeed, here in
Philadelphia we saw thirty-two dangerous air quality days this year, the most in the state of
Pennsylvania. Philadelphia also saw its highest ever recorded level of precipitation and the
longest string of days over 70 degrees.7 Thus, we here in Philadelphia and the surrounding
regions have a direct stake in the outcome of these listening sessions and in the effectiveness of
the rule EPA ultimately adopts.
In the absence of Congressional action on carbon emissions, EPA’s regulatory authority
is the best and most immediately available option for addressing the problem of carbon pollution
in the United States. Although industry argues otherwise, the Council strongly urges that EPA
does indeed have the authority to regulate existing sources of CO2 under § 111(d) of the Clean
Air Act.
Section 111(d) establishes circumstances under which EPA must direct the establishment
of “standards of performance” i.e. limits on emissions for existing sources of pollution in listed
industries.8 Section 111(d) directs EPA to prescribe regulations under which each state submits
a plan that establishes standards of performance for existing sources of air pollution which either:
(a) have not been the subject of issued air quality criteria or which are not included on a list
published under § 7408(a) – in other words, which have not been regulated under the Clean Air
Act’s National Ambient Air Quality Standards, or (b) that are not emitted from a source category
regulated under the section of the Clean Air Act that governs air toxics.9
The air toxics provisions of the Clean Air Act were heavily amended in 1990. Prior to
1990, the EPA listed and regulated hazardous air pollutants individually. After the 1990
amendments, Congress listed 188 individual toxic air pollutants in § 112(b), and EPA was then
required to list industries and then issue standards for each of the listed § 112(b) toxic air
pollutants. In other words, a proper reading of the statute shows that § 111(d) “is to be used to
4
Justin Gillis, Climate Change Seen Posing Risk to Food Supplies, N.Y. TIMES, Nov. 1, 2013, available at:
http://www.nytimes.com/2013/11/02/science/earth/science-panel-warns-of-risks-to-food-supply-from-climatechange.html?src=rechp.
5
Id.
6
EPA Administrator Gina McCarthy, Remarks at National Press Club Event (Sept. 20, 2013) (transcript available
at: http://press.org/sites/default/files/20130920_mccarthy.pdf).
7
http://www.philly.com/philly/blogs/phillylists/5-weather-records-set-in-Philadelphia-in-summer-2013.html
8
See 42 U.S.C. § 7411(d)(1)(A) (2012).
9
See id.; see also Ann Weeks, Essay Responding to Brian H. Potts, “The President’s Climate Plan for Power Plants
Won’t Significantly Lower Emissions,” 31 YALE J. ON REG. 38 (2013) (hereinafter “Weeks Essay”), available at
http://jreg.commons.yale.edu/files/2013/10/Ann-Weeks-Response-Essay-to-Brian-Potts.pdf.
regulate any air pollutant that is not included on a list published under section 7408(a) or under §
112(b).”10 Thus, regulation of sources of carbon dioxide pollution is a proper use of § 111(d)
and is within EPA’s authority under that provision of the Clean Air Act.
Section 111(d)’s prohibition on using existing-source standards for pollutants for which
NAAQS already exist makes sense. It avoids double regulation, because existing sources of
those pollutants will already be covered by SIPs.11 Similarly, § 111(d) prohibition on using
existing-source standards for air toxics makes sense, because existing sources of already-defined
air toxics will be regulated under § 112(b).12 Carbon dioxide falls into neither one of those two
categories. It is exactly the kind of pollutant – one that has fallen through the cracks of other of
the Clean Air Act’s provisions – that § 111(d) was intended to regulate.
Having established that EPA does have authority to develop a carbon rule for existing
sources pursuant to § 111(d), the Clean Air Council urges EPA to consider the following as it
does so:
First, in order for the new rule to be as effective as possible at reducing carbon pollution
over the longer term, the states plans must adapt to keep pace with improvements in technology.
The Council believes that the statute allows for the states to establish pre-planned changes in the
stringency of standards over time, and that EPA should encourage them do so. First, § 111(d)
specifically references procedures established under § 110 of the Act – and that section explicitly
references states ability to set schedules and time tables for compliance. Also, § 111(d) instructs
states to consider other relevant factors, including the remaining useful lifetime of existing
sources. Thus, § 111(d) appears to allow for the establishment of a timetable of increasingly
stringent requirements as a way of accounting for the decreasing remaining lifetimes of plants.
Moreover, the Clean Air Act requires that a standard of performance – for both new and
existing sources – reflect the “best system of emissions reduction which (taking into account the
costs and non-air quality health and environmental impact and energy requirements) the
Administrator determines has been adequately demonstrated.”13 This provision has been
interpreted (in the context of new sources) as being technology-forcing, as “look[ing] toward
what may fairly be projected for the regulated future” rather than being based on the present state
of technology.14 Furthermore, the statutory definition of “standard of performance” is the same
for both new and existing sources.15 There is thus a strong argument that advancing control
technologies must be considered in developing standards of performance for existing sources just
as they are for new sources.16 An effective way to ensure that the technology-forcing intent
behind the best system of emissions reduction requirement is implemented in the context of §
10
Weeks Essay at 42.
Id.
12
Id.
13
42 U.S.C. § 7411(a)(1).
14
Lignite Energy Council v. EPA, 198 F.3d 930, 934 (D.C. Cir. 1999) (quoting Portland Cement Ass’n v.
Ruckleshaus, 486 F.2d 375, 391 (D.C. Cir. 1973).
15
See 42 U.S.C. § 7411(a)(1); 42 U.S.C. § 7411(d)(1).
16
Gregory E. Wannier, Jason A. Scwhartz, Nathan Richardson, Michael A. Livermore, Michael B. Gerrard, Dallas
Burtraw, Prevailing Academic View on Compliance Flexibility under § 111of the Clean Air Act, Resources for the
Future Discussion Paper (July 2011) (hereinafter “Compliance Flexibility”), at 12-13.
11
111(d) and carbon pollution would be to require the state’s proposed systems to become
gradually more stringent over time.17
Second, in order for the new rule to be effective in reducing carbon pollution, they also
need to avoid the problem of one fossil fuel – coal – simply being replaced by another – natural
gas. To this end, the Council urges EPA to draft the rule to allow states to implement renewable
energy portfolio standards and energy efficiency programs as part of the plans they submit. EPA
has issued guidance that allows states to claim credit for emissions reductions of criteria
pollutants achieved through adopting energy efficiency and renewable portfolio standard
programs under their § 110 SIPs. Since § 111(d) explicitly contemplates a § 110 SIP-like
program, the Council argues that EPA should similarly allow credit for RPS and energy
efficiency efforts in this context. Doing so will help to avoid the rule’s simply achieving a shift
from one climate change-causing fuel to another.
Finally, the Council would urge that the rule allow for states to create joint plans that
allow trading among states in a manner similar to programs such as RGGI. There is no explicit
statutory bar to joint plans18 and, in terms of reducing carbon pollution, the larger a geographic
area a plan can encompass the better. This is because a joint plan that covers multiple states
prevents one state from simply purchasing allowances from another (whose emissions are
already going down) and thereby complying without actually reducing its emissions at all. The
Council also urges EPA to structure the rule to include incentives for states to enter into joint
programs, so that states such as Pennsylvania – which has been unwilling to participate in RGGI
– might decide to join.
It is frequently argued by the fossil fuel industry in Pennsylvania and its proponents that
EPA regulations kill jobs and endanger Pennsylvania’s electric grid. The recent closings of the
Hatfield’s Ferry and Mitchell coal-fired power plants are frequently cited as exemplifying the
problem, and you may hear industry argue that this is a reason EPA should not adopt rules
regulating carbon emissions from existing sources. However, it is crucial to note that these
power plants – and indeed many coal fired power plants that have recently been retired – were
retired because they were not in compliance with the Mercury and Air Toxics Standard
(“MATS”).19 The MATS standard is emphatically not the subject of the current listening
sessions, and to point to such closings as a reason for EPA not to promulgate the rule currently
under consideration relating to carbon emissions is simply disingenuous.
Moreover, arguments that regulation of the fossil fuel industry eliminates jobs fails to
consider several important points. First, that many of the jobs the industry does create,
particularly those associated with the relatively new natural gas drilling technique commonly
known as fracking, are frequently short-lived and often do not go to those living in the
communities who bear the brunt of the negative effects of fossil fuel extraction.
17
Id.
Id. at 5.
19
http://www.heraldstandard.com/gcm/news/local_news/former-hatfield-workers-protestfurloughs/article_c672395c-dafb-5368-9945-f25cfe30900f.html
18
Second, that climate change caused by the carbon emissions of those industries also
eliminates jobs and does significant damage to the economy. Climate change drives energy bills
up because increasingly extreme weather results in increasing need for both heat and air
conditioning. The inclement weather of all kinds caused by climate change also causes very
significant and costly damage, shuttering businesses temporarily or permanently, and eliminating
jobs. PPL Electric Utilities of Allentown has claimed to invest $968 million in infrastructure
improvements this year to minimize outages from extreme weather.20 In July of 2013 New Jersey
lost 12,000 jobs, almost half of which were in leisure or construction, both of which are still
reeling from Hurricane Sandy21. The New Jersey department of labor saw 78,000 unemployment
applications in the weeks after Hurricane Sandy first hit the upper East Coast.22 Storm damage
to electric grids also results in higher energy bills for consumers. In October of this year, PPL
Electric Utilities proposed a storm damage fee to be added to energy bills in the Lehigh Valley
because of the damage done by Hurricane Sandy.23
Third, these arguments fail to take into consideration the fact that renewable forms of
energy, such as solar and wind power, are increasingly creating jobs of their own and have the
potential to create many more. As fossil fuels become increasingly difficult and expensive to
extract, become increasingly cost effective by comparison. Increasingly large portions of the
energy grid both in the United States and around the world are being supplied by renewables,
and a shift to these industries represents many stable and long-term jobs for Pennsylvanians and
other Americans. EPA should develop a rule that reduces carbon dioxide emissions not only by
forcing existing fossil-fuel powered fire plants to emit less, but also by encouraging a shift to
renewable energy and development of effective energy efficiency programs.
In short, the climate change caused by carbon pollution is an extremely pressing threat to
human health, not only on a global scale but also locally here in Pennsylvania and to United
States citizens in general. Existing fossil-fuel powered power plants are a significant contributor
to carbon emissions in Pennsylvania and in the U.S. as a whole.24 The Clean Air Council
applauds EPAs efforts to develop a rule under § 111(d) of the Clean Air Act to regulate carbon
emissions for such facilities. The weight of legal precedent indicates that EPA has the authority
to promulgate such a rule, and it is the best, most immediately available mechanism for
addressing a problem which requires immediate action. As set out above, the Council urges EPA
to take all possible measures to ensure that the rule it develops does not simply result in the
replacing of coal-fired plants with natural gas-fired plants. In order to truly address the threat of
climate change we need to move away from fossil fuels and reorient our energy grid around
renewable and non-carbon-based sources of energy. EPA should therefore ensure that its rule
gives states the flexibility to incorporate renewable portfolios into their plans for reducing
emissions, and also to coordinate their plans to ensure that emission reductions happen as
efficiently as possible. Until the United States effectively addresses its own carbon emissions,
20
http://www.lvb.com/article/20130221/LVB01/130229983/PPL-to-spend-$1B-on-infrastructure-improvementsthis-year.
21
http://www.nj.com/business/index.ssf/2013/08/post_279.html.
22
http://www.bloomberg.com/news/2012-11-15/jobless-claims-jumped-last-week-as-sandy-damaged-u-s-jobmarket.html.
23
http://articles.mcall.com/2013-10-31/news/mc-ppl-storm-damage-fee-20131031_1_storm-costs-proposed-feestorm-damage.
24
http://www.epa.gov/cleanenergy/energy-and-you/affect/air-emissions.html.
we will not be able to effectively work with the rest of the world’s countries to effectively
address the global problem of climate change.