Clean Air Act

Conflicting demands for complying with EPA’s MATS rule favor a single control technology to deal with multiple types of power plant emissions.

When Revolutionary War veteran Daniel Shays led an attack on the federal Springfield Armory in January 1787—the spark that ignited the federalist movement—he scarcely could’ve guessed that now, 225 years later, his spiritual descendants would still be fighting that very same battle.

New environmental requirements under the Clean Water Act (CWA) will add to the already complex burden of compliance for power plants. As the Environmental Protection Agency moves forward with cooling water and effluent standards, utilities and generators will have to deal with overlapping rules and conflicting policy goals.

The power and gas markets look very different today from what we were anticipating three to four years ago. Gas has gone from seeming shortage to seeming abundance with recent spot prices falling to well under $3/mcf. Power prices and volatility are down significantly. Demand is soft and excess capacity exists in most of the country. While it might be easy to attribute the conditions in the power markets largely to the recession, the reality is that the fundamentals of the market are materially changing—creating opportunities while revealing new pitfalls.

The U.S. Treasury cash grants for new renewable power projects expired at the end of 2011. These incentives, which were implemented under Section 1603 of the American Recovery and Reinvestment Act of 2009, helped to support continued capacity additions throughout the recession. The impending expiration of these grants caused a wave of merger and acquisition (M&A) activity during 2011 as developers and financiers rushed to get deals done and to begin construction in order to meet the Section 1603, 5-percent safe harbor threshold by the Dec. 31, 2011 deadline.

The energy industry has known for decades that federal regulators eventually would set rules under the Clean Air Act to govern emissions of mercury and other air toxics from coal-fired power plants. However, with the U.S. Environmental Protection Agency now having issued a final mercury rule, along with guidelines for possible extensions of the compliance deadline, utilities and power plant owners finally have a clear idea what they are up against. And the outlook isn't pretty. The challenge is to retrofit many hundreds of generating plants across the country--and all on the same three-year compliance schedule. Yet two wildcards remain in play: what deference the EPA will give to electric reliability needs, as it "consults" with the Federal Energy Regulatory Commission (FERC) and the North American Electric Reliability Council; and how effective FERC Chairman Jon Wellinghoff will be as Republican leadership in Congress works to derail the new rules.

With a flurry of major new environmental regulations, the Environmental Protection Agency (EPA) is altering the power generation landscape. But will the new federal rules survive court challenges—to say nothing of next year’s national elections? Fortnightly's Michael T. Burr considers the controversy over new environmental standards. PLUS: Top Utility Lawyers of 2011.

The Supreme Court’s decision in American Electric Power v. Connecticut strongly limits private nuisance actions against greenhouse gas (GHG) emitters by keeping these cases out of federal court. But the AEP decision won’t stop lawmakers from enacting new GHG regulations, and it won’t prevent plaintiffs from suing emitters in state courts.