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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

at (last visited Mar. 15, 2006).

18. See id. at 8.

19. See id.

20. Findings of Fact, Conclusions of Law & Order 4-5, In re Air Pollution Control Constr. Permit Issued to Wis. Elec. Power Co., Case No. IH-04-03 (Wis. Div. of Hr’gs & App. Feb. 3, 2005).

21. Id. at 4.

22. EPA, Draft New Source Review Manual (1990), available at (last visited Mar. 15, 2006).

23. Id. at 10-11.

24. Id. at 11.

25. Id. at 11-12.

26. Press Release, The Alamo Group of the Sierra Club, “CPS Energy Completes Plant’s Deal with Environmentalists” (Dec. 5, 2005), available at (last visited Mar. 15, 2006).

27. Id.

28. Id.

29. See “EPA Says New Coal Plants Don't Need IGCC To Meet Air Standards,” EnergyWash. Week, Dec. 21, 2005. The Commission’s conclusion arose out of its determination of whether an administrative panel hearing a dispute over a proposal to build a pulverized coal power plant in Riesel, Texas improperly excluded from consideration information related to IGCC.

30. N.M. Stat. § 72-4-5C(1)(a) (2005).

31. Ohio Rev. Code Ann. § 3704.036(B) (West 2006).

32. S.D. Codified Laws § 1-40-4.1 (2005).

33. Okla. Stat. tit. 27A, § 2-5-114(A)(2) (2005) (The state agency “may promulgate, pursuant to recommendation by the council, rules which establish emission limitations for hazardous air pollutants which are more stringent than the applicable federal standards, upon a determination by the Council that more stringent standards are necessary to protect the public health or the environment.”).

34. R.I. Gen. Laws § 23-23-5(12) (2005) (The state agency “may regulate the emission characteristics of all fuels used by stationary and mobile sources of air contaminants, provided the specific control technology and emission characteristics of fuels shall not be more stringent than the [federal standards], unless it can be shown that the control technology and emission characteristics of fuels are needed for the attainment or maintenance of air quality standards.”).

35. Mo. Ann. Stat. § 643.055(1) (West 2005) (requiring specific findings of fact by the state’s air conservation agency for the promulgation of standards stricter than those imposed by the CAA).

36. W. Va. Code § 22-5-4(a)(4) (2006) (“[N]o legislative rule or program of the [state] director hereafter adopted shall be any more stringent than any federal rule or program except to the limited extent that the director first makes a specific written finding for any such departure that there exists scientifically supportable evidence for such rule or program reflecting factors unique to West Virginia or some area thereof.”).

37. 35 Pa. Cons. Stat. Ann. § 4006.6 (providing that the state may not impose regulations more stringent than those in the CAA unless such standards are “needed to protect public health, welfare and the environment from emissions of hazardous air pollutants from new and existing sources”).

38. Natural Resources Defense Council v. EPA, case no. 06-1059, Environmental Defense Inc. v. EPA, case no. 06-1062, and American Lung Association v. EPA, case no. 06-1062, were recently consolidated on the court’s own motion.

39. Letter from American Lung Association of Metropolitan Chicago, et al.