Case against EPA’s flawed greenhouse gas rule for new coal misses the point

— December 3, 2013

By Dustin Bleizeffer

In a recent memo, an independent advisory board informed U.S. Environmental Protection Agency officials that the carbon capture and sequestration (CCS) technology review that the agency offered up as a possible means to meet its proposed greenhouse gas emission limit (1,100 pounds per megawatt hour) for new coal-fired power plants doesn’t seem to add up — which is stating the obvious for many observers.

Few argue that coal-based CCS is not an economically viable technology for new, commercial-scale coal-based power generation facilities. Case in point: no utility plans to build one in the U.S. The Scientific Advisory Board’s November memo stating this obvious fact serves as confirmation that attorneys on all sides are preparing for a huge legal battle over the federal government’s attempt to curb greenhouse gas emissions from coal.

“There’s no question that when this rule is finalized it’s going to be challenged by everybody. This is one of those lawyers’ dreams,” said Holland & Hart attorney James H. Holtkamp, who represents big energy companies on climate matters.

EPA announced the proposed New Source Performance Standards (NSPS) for carbon from new large industrial sources on September 20, attempting to begin to fulfill the agency’s mandate to regulate carbon emissions as a pollutant under the Clean Air Act. The limit of 1,100 pounds per megawatt hour for new coal facilities is about a 40 percent emissions reduction compared to what today’s average coal plant emits, while the proposed 1,000 pounds per megawatt hour standard for large natural gas-fired power generation is in line with today’s fleet average.

An aerial view of a large strip coal mine in the southern Powder River Basin (Dustin Bleizeffer/WyoFile — click to enlarge)

When the proposed standards were announced, stakeholders on all sides agreed that the result — if implemented — is no new coal plants. But the coal industry sees an opening in the EPA’s CCS technical review flaw. In setting new NSPS standards, EPA is expected to identify what technologies are available to achieve the new standards, logistically and economically.

“When EPA rolled out that new rule and suggested that (CCS) technology is ‘demonstrated,’ it sparked a huge amount of controversy, particularly on the side of industry,” Holtkamp told WyoFile. “You can do it technologically, but it’s far from an economic solution.”

And the coal industry is using this to fuel its campaign to kill EPA’s new greenhouse gas emission limit rules.

Rick Curtsinger, spokesman for Wyoming coal producer Cloud Peak Energy, sent a written statement to WyoFile regarding the EPA’s supposedly flawed CCS review; “Our country needs a fair, predictable and balanced regulatory framework that encourages, not precludes, investments in modern, clean burning, coal-fueled power plants to support future generations and America’s global competitiveness.”

Jeremy Nichols of WildEarth Guardians is a fierce opponent of the coal industry. He told WyoFile he believes EPA and the Obama administration screwed up. “There’s some reason for EPA to worry about this, because how can you say CCS can be done (economically)?”

Nichols said he wishes the administration hadn’t included a CCS technology review in this NSPS rulemaking in the first place.

A haul truck carries a load of Powder River Basin coal out of the pit. (Dustin Bleizeffer/WyoFile — click to enlarge)

“They technically don’t have to do anything,” Nichols said of EPA’s CCS review. “They really don’t. It’s the politicalization of the issue. … They want to come down on the industry while making them feel good about it. Isn’t it enough to say we’re in a climate crisis and it doesn’t matter how much it costs the coal industry?”

Holtkamp said he didn’t have enough information to analyze how well that argument might play out in a legal challenge. But both WildEarth Guardians and Cloud Peak Energy may be slightly off in their initial assessment that EPA’s CCS review is fatally flawed — at least if Mark Northam, director of the University of Wyoming’s School of Energy Resources, is correct in his assessment of advancing research.

In October, Northam told WyoFile that while the classic CCS design for new power plants is an unsurmountable expense at the moment, researchers are making promising advances in cryogenic carbon capture for natural gas-fired plants. That’s good news for coal, Northam suggested, because utilities will necessarily have to continue to reduce carbon emissions from natural gas facilities, relying on the advancement of cryogenic carbon capture — which is still an economically justifiable endeavor for natural gas-based electrical generation.

Northam said that this same method of carbon capture that works for natural gas also works for coal. And it may evolve into a “bolt-on” application, as opposed to a design for new coal facilities. “So in my opinion, research (for capturing carbon from coal) might be delayed, but it’s certainly not down for the count,” Northam said.

Nothing is going to snuff the inevitability of a legal challenge to EPA’s greenhouse gas limits for coal. That’s because the Clean Air Act is a horrible vehicle for cutting carbon from coal-fired power plants in an attempt to address climate change. The Clean Air Act is not designed to address a global-wide problem. Is EPA going to declare the entire planet in non-attainment (a designation legally requiring action by EPA to resolve an air quality problem) for carbon?

So long as Congress continues to fail to address climate change through comprehensive legislation, those who care about avoiding a climate crisis are left with the Clean Air Act as one of the main tools to diminish coal’s contribution in the U.S. to climate change. EPA is being blamed for creating an impossible standard for coal, but the coal industry is asking for the impossible; to forget about taking action on climate change. A more accurate headline for this post might be “Case against EPA’s flawed greenhouse gas rule for new coal misses the point (unless the point is to delay action on the impending climate crisis).”

In the meantime, Wyoming’s elected leaders in Cheyenne and in D.C. will continue trying to convince you there’s nothing to worry about, and there’s nothing that can be done about global warming anyway. If that’s the case, then why has Wyoming appropriated more than $41 million to the Advanced Conversions Technologies Task Force in recent years? Couldn’t we spend that money on more immediate humanitarian needs? If Wyoming is going to spend this much money to advance coal emissions research, then why are our elected leaders fighting so hard against the very policies that will drive others to help fund the effort?

The work to bring coal-based CCS technology to commercial viability hasn’t happened. But it’s not because the coal industry didn’t see the demand for carbon reduction coming for the past two decades. Instead, they made a political calculation and spent their dollars lobbying for candidates who would champion the status quo, ignoring climate change, when they might have spent those dollars on research.

— Dustin Bleizeffer is WyoFile editor-in-chief. He has covered energy and natural resource issues in Wyoming for 15 years. You can reach him at (307) 267-3327 or email dustin@wyofile.com. Follow Dustin on Twitter at @DBleizeffer

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