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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

catalytic reduction (SCR) for conventional pulverized coal power plants are installed only to control emissions, as they have no other purpose. For such technologies, a regulatory push may be essential to ensure adoption, especially of the latest, most effective, and most expensive options as they become available.

In contrast, alternative designs such as IGCC, like alternative fuels—whether natural gas or lower sulfur coal—go well beyond consideration of emissions. These alternatives, after all, affect choices that might not be limited to emissions control, since they relate to equipment, processes, operating considerations and even plant-siting choices beyond whether to install add-on emissions-control technology.

Meanwhile, the ongoing legal challenges, coupled with the divergence in approach between the EPA and certain states, create a legal ambiguity that could affect development of IGCC as well as processes for approval and development of plants needed to meet growing energy demand. Unless Congress intervenes through enactment of clarifying legislation, the state and federal legal landscape surrounding the approval of new coal-fired power plants may remain murky and unsettled for the foreseeable future, as the federal cases proceed and as the states continue to experiment with, and refine, their own policies. The course of the debate could have a substantial effect not only on the future of IGCC but also on the interface between energy policy and environmental policy.



1. See U.S. Department of Energy, Office of Integrated Analysis and Forecasting, Annual Energy Outlook 2006 – With Projections to 2030 at p. 98 (2006), available at (last visited Mar. 10, 2006) [hereinafter Energy Outlook 2006].

2. Letter from Stephen D. Page, Director, EPA Office of Air Quality, Planning and Standards, to Paul Plath, Senior Partner, E3 Consulting, LLC 1 (Dec. 13, 2005) (on file with authors) [hereinafter “Page Letter”].

3. Id. at 2.

4. Id.

5. Page Letter, supra note 14, at 1 (emphasis in EPA letter, added to statutory text).

6. NSR Workshop Manual, supra note 16 (drawing no distinction between the alternatives analysis and analysis).

7. In re Prairie State Generation Co., PSD Appeal No. 05-05 (EPA Brief filed March 7, 2006) [hereinafter “Prairie State Br.”].

8. Id. at 6.

9. Prairie State Br., supra note 20, at 15.

10. Prairie State Br., supra note 20, at 15.

11. Id.

12. See, e.g., Memorandum from Robert E. Fabricant, General Counsel, EPA, to Marianne L. Horinko, Acting Administrator, EPA 1 (Aug. 28, 2003) available at general_ counsel_opinion.pdf (last visited Mar. 15, 2006).

13. See Renee Cipriano, Director, Illinois EPA, Director’s Viewpoint, Mercury Reduction Is a Priority, available at (last visited Mar. 15, 2006).

14. See id.

15. See Press Release, Office of State of Illinois Governor Rod Blagojevich, “Gov. Blagojevich Continues to Develop New Markets for Clean-Burning Illinois Coal and the Creation of New Jobs Across the State” (June 21, 2005), available at ShowPressRelease.cfm?SubjectID=3&RecNum=4077 (last visited Mar. 15, 2006).

16. See id.; see also 220 Ill. Comp. Stat. 5/9-220(h) (2006).

17. See Montana Dep’t of Environmental Quality, Montana Top-Down Best Available Control Technology (BACT) Analysis Process And Procedures Manual 8 (2004), available