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UPDATE: EPA reviewing existing rules to find GHG cuts for Biden plan

03 May 2021 Amena Saiyid

The head of the US Environmental Protection Agency (EPA) said the agency will go through existing as well as upcoming federal air, and possibly, water quality regulations to identify GHG cuts that will help meet the US climate goal of halving economywide emissions by 2030.

"Congress has delegated to EPA authorities on water quality and air quality that are relevant to climate change, so we will be focusing on transportation sources, stationary sources, methane and other categories that fall within our purview to meet our climate goals," EPA Administrator Michael Regan told Rep. Paul Tonko, Democrat-New York, at a 29 April hearing before the Environment and Climate Subcommittee of the US House of Representatives Energy and Commerce Committee.

The hearing was really about EPA's fiscal year 2022 budget, but Subcommittee Chairman Tonko as well as Republican lawmakers were interested in hearing Regan's explanation for EPA's role in meeting the recently announced US nationally determined contribution, or target of halving GHG emissions, from a baseline of 2005 levels, by 2030.

President Joe Biden said this goal would help the country reach a zero-carbon power sector by 2035, a goal that Rep. David McKinley, Republican-West Virginia, repeatedly questioned Regan about.

On track with rulemaking

Elaborating on his answer to Tonko, Regan said that EPA is currently on track to propose a rule to limit tailpipe GHG emissions by mid-July and another proposed rule to limit methane releases from new oil and gas wells by September. He said the agency also is working on a rewrite of a rule to limit power sector GHG emissions.

The Biden administration has requested $1.8 billion for the agency to spend on climate programs in fiscal year 2022,he said, adding this includes $100 million in grants for states and local governments.

The EPA administrator's answer to Tonko did not satisfy Mckinley who asked Regan how the agency would help the nation achieve the eventual 100% carbon-free power sector goal by 2035.

"We believe we can make a strong run and be successful," Regan said, but that endeavor would be pursued after the EPA consults with investor-owned utilities and rural electricity cooperatives.

New Source Review reform?

To meet the goal, McKinley, however, said the EPA immediately needs to reform federal New Source Review (NSR) regulations. Under NSR, utilities secure permits to upgrade their generation equipment and operations and run their plants more efficiently resulting in fewer GHG emissions. A condition of the NSR permit is that a utility has to install pollution controls to offset any significant increases in smog- and haze-forming pollution.

He said electric power utilities spend at least seven years trying to obtain NSR permits, adding the sector can't wait five, six or seven years to start making GHG cuts. "We need it now."

Regan, sidestepping the rules, said, "I am willing to look at any efficiencies that we can put in any of our regulations to achieve these goals."

EPA elaborated on Regan's responses to House members in a 3 May email to IHS Markit, saying saying the agency is committed to implementing Biden's 20 January order.

"We are conducting our work, including work on greenhouse gas regulations and the New Source Review program, in a manner that is transparent, consistent with the law, and anchored in the restoration of scientific integrity and evidence-based policymaking throughout EPA," an EPA spokesperson said, but didn't offer any further details on timing.

Easing NSR permitting regulations has been the goal of the electric power sector and Republican lawmakers for several decades. EPA under the prior administration already revised a number of these rules with the explicit goal of allowing easier upgrades across all industrial sectors. However, Biden in his 20 January executive order has asked the agency to review all rules that President Donald Trump signed into law during his four-year tenure. Regan didn't provide an update on the status of its review of those NSR rules, and McKinley didn't ask him either.

Trump, Obama GHG rules

McKinley also did not mention that the Trump administration made energy efficiency improvements to power plant generation a key part of the Affordable Clean Energy (ACE) rule, which was a rewrite of the Obama-era Clean Power Plan that was the nation's first-ever rule to limit power sector GHGs in 2015. The Obama rule never took effect because a West Virginia-led coalition of states was able to persuade the US Supreme Court to block the rule even before it took effect.

However, the US Court of Appeals for the District of Columbia Circuit tossed out the ACE rule in January 2021 on grounds that it misconstrued a Clean Air Act provision and narrowly constrained EPA to limit GHG reductions within a plant's boundaries. The ruling raised the specter that the 2015 Clean Power Plan could be reinstated once the court issues its mandate. However, EPA was able to persuade the federal appeals court to delay issuing its mandate, which kept the Obama-era rule blocked, as it ponders a rewrite of the regulation.

At the hearing, Regan repeatedly reassured both Republican and Democrat lawmakers that EPA would consult with all stakeholders in the electric power sector before moving forward with a rewrite.

Supreme Court petitioned

While Regan was testifying at the hearing, West Virginia Attorney General Patrick Morissey, a Republican, joined by 18 attorney generals from mostly Republican states, petitioned the US Supreme Court to review the federal court ruling on the ACE rule.

Morrisey contended that the federal court's ruling was unlawful because it gave EPA "unbridled power—functionally 'no limits'—to decide whether and how to decarbonize almost any sector of the economy."

A week ago, Morissey criticized the US' new climate goal, saying Biden failed to provide any legal basis for "his new, unilateral mandate" that would cause energy costs to skyrocket and affect every aspect of the economy.

--Updated article with EPA's clarification of Regan's responses.

Posted 03 May 2021 by Amena Saiyid, Senior Climate & Energy Research Analyst, IHS Markit

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