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Wind and the Environment: The EPA's Tech Divide

Does the Clean Air Act require the agency to consider the most low-emission coal plant technologies in permitting new plants?

Fortnightly Magazine - June 2006

difference[s]” in the processes, components, and regulatory treatment, and these differences “support the conclusion that IGCC and SCPC are different process technologies, and that to substitute one for the other would redefine the design of the source.” 25

Down the Middle

Recent developments in Texas suggest that there may be a middle-ground approach to the IGCC issue. On Dec. 5, 2005, CPS Energy and several environmental groups reached a settlement over the construction of a coal-fired plant near San Antonio. 26 As part of the settlement, the environmental groups agreed to drop their opposition to the plant’s permitting, while CPS agreed to make certain enhancements to its energy-conservation and renewable energy programs and to fund an engineering study on the use of IGCC. 27 CPS was not required to adopt IGCC to move forward with the plant. 28

On Dec. 15, 2005, shortly after the settlement was announced and just two days after EPA’s issuance of its Page letter interpretation, the Texas Commission on Environmental Quality announced that IGCC is not required as part of a BACT analysis. 29 Despite this determination, the CPS settlement indicates that there may be an intermediate approach the issue, at least until IGCC is more broadly tested and proven.

Other states such as New Mexico preclude state agencies from promulgating air pollution regulations more stringent than the CAA, providing that any such regulations must be “no more stringent than but at least as stringent as required” by the CAA. 30 Ohio has enacted a similar restriction, permitting its agency to promulgate rules for the purpose of implementing the CAA provided any such rules “are consistent with, and no more stringent than, the requirements” of the CAA. 31 South Dakota imposes a similar restriction, even extending the statute to limit promulgation of rules relating to other forms of pollution such as water. 32 Oklahoma, 33 Rhode Island, 34 Missouri, 35 West Virginia, 36 and Pennsylvania 37 permit more stringent state regulations only if the state agency meets specific criteria or follows certain procedures. The significance of the EPA’s decision is particularly acute in these states, as their existing regulations are likely effectively to foreclose consideration of IGCC as a requirement of BACT, at least as long as EPA’s Page letter interpretation survives legal challenge.

The Legal Challenge to the EPA’s Decision

An array of environmental groups—including the Natural Resources Defense Council, the Sierra Club, the American Lung Association’s Chicago Chapter, Ohio Environmental Council Valley Watch, the Environmental Defense, and the Montana Environmental Information Center—have filed suits in the Court of Appeals for the District of Columbia challenging the EPA letter on both substantive and procedural grounds. 38 The arguments are foreshadowed in a letter to EPA urging withdrawal of the Page letter. 39

Specifically, the environmental groups allege that the EPA decision constitutes a new interpretation of the law and a change in EPA rules and prior interpretations promulgated without notice and opportunity for public comment, in violation of requirements set forth in the CAA. 40 In addition, they argue that the EPA interpretation conflicts with the