(May 2008) Senators were voting on legislation to extend the renewable production tax credit (PTC) as this issue of Fortnightly went to press. But with federal tax support for...
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?
text and legislative history of the CAA, as well as prior agency rulemakings and adjudicatory decisions. 41
The environmental advocates point, in particular, to legislative history for the 1977 Amendments to the Clean Air Act, regarding the definition of BACT. They argue that, in defining BACT during the course of the 1977 Amendments to the CAA, Congress specifically included the term “innovative fuel combustion techniques” 42 in Section 169(3) to “leave no doubt” that BACT included all production methods—including IGCC. 43 They point in particular to a statement from Sen. Walter Huddleston, who cautioned that without this clarification, “the possibility of misinterpretation would remain.” 44 In addition, they argue that the Senate’s report on the 1977 amendments reflects Congress’ broad view of state permitting agencies’ authority in evaluating BACT, 45 noting that “when an analysis of energy, economics, or environmental considerations indicates that the impact of a major facility could alter the character of the community, then the state could, after considering those impacts, reject the application.” 46
The EPA interpretation will be fought out in the Court of Appeals for the D.C. Circuit, where litigation also could be decided on administrative law grounds. Meanwhile, state approaches will continue to evolve and, especially if the D.C. Circuit does not reach the substantive issue, face challenges of their own in front of state agencies, the Environmental Appeals Board, and the courts.
EPA’s Decision: Implications to Global Warming
The EPA’s determination also raises important policy questions in light of the current energy and environmental backdrop and at a time in which environmental advocates generally mistrust the EPA’s policy judgments. New capacity is needed to replace aging plants and respond to growing demand at a time when the United States’ greenhouse-gas emissions continue to rise. Emissions from existing plants account for one-third of total United States production of greenhouse gases, and actual emissions are expected to increase 30 percent in the next 20 years. 47 Unlike the older processes, IGCC can be configured in a way that can separately capture carbon dioxide emissions at a reasonable cost, making it possible to store nearly all of the carbon dioxide emissions in geologic formations in coming years. 48
Some environmental groups have argued that if the EPA decision to exclude IGCC from BACT analysis for coal-fired power plants stands, it could hinder progress toward the environmental goal of reducing the emissions of greenhouse gases and other pollutants. In particular, they emphasize the technology-forcing objectives of the CAA and the established BACT process, and express concern that eliminating IGCC from consideration as BACT will remove the strong regulatory push toward this innovative technology, leaving proponents of the technology greater hurdles to garner interest and investment.
Indeed, even beyond coal-fired power plants, they are concerned that the EPA decision could have the ripple effect of impeding development of innovative technologies in other areas, such as refining, manufacturing, and other types energy generation plants. There are, however, substantial arguments that the distinction EPA has drawn is rational and appropriate. In particular, add-on emissions control technologies such as scrubbers and selective