epa to crack down on Fossil power plant emissions
by roBEr T UKEilEY The hope that national greenhouse gas legislation will be the silver bullet to internalize the cost of dirty energy is growing dimmer. If greenhouse gas legislation passes at all, it will likely be so weak as to have only
a minor impact on the cost of dirty energy in the short
and medium term. However, there’s a variety of other
environmental regulations on the horizon that, if strongly
supported, could bring the death of fossil fuels, albeit by a
thousand cuts. For instance —
Coal combustion waste is very toxic but has enjoyed
an exemption from proper regulation for years. That may
change soon. At press time, the Environmental Protection
Agency (EPA) planned to issue proposed regulations by the
end of 2009. Environmental organizations and members of
Congress, led by Rep. John Lewis (D-Ga.), are pushing for
stringent regulations. A requirement for proper disposal
of the 130 million tons of coal-combustion waste created
every year as hazardous waste would be a significant leveler
for renewable energy and energy efficiency.
In addition, the EPA now says explicitly, for the first
time, that when it finalizes a pending greenhouse gas
(GHG) vehicle emissions rule, carbon dioxide and other GHGs will become subject to
regulation under the Clean Air Act. That will
trigger mandates for new power plants and
other stationary sources to limit their GHGs.
The EPA is expected to finalize the vehicle
GHG rule in March.
The EPA is also revising the ambient
air-quality standards for a variety of pollutants such as nitrogen oxides, sulfur dioxide,
fine particulate matter and ozone. The science strongly supports making these standards more protective. Most of the revisions
should become final this year. However, keep
in mind that it can take the EPA a long time
to get regulations in place to ensure that the
ambient air meets these standards.
On the water pollution front, the EPA has
said that it is going to update its woefully inadequate emission limits for discharges from
power plants. In addition, the EPA announced
last fall that it will strengthen enforcement of
the Clean Water Act.
In terms of tort liability, there have been
a couple of victories in holding polluters
accountable for public nuisances and property
damage caused by greenhouse gas emissions.
In September, the U.S. Court of Appeals for
the Second Circuit in New York held that a
collection of states, cities and land trusts can
Robert ukeiley (rukeiley
@ igc.org) is a lawyer
who represents environmental nonprofits in
clean air act litigation
affecting energy issues.
proceed with their lawsuit against five large electricity utilities. The plaintiffs seek an order requiring the power companies to reduce their greenhouse gas emissions. However,
they are not seeking monetary damages. The district court
originally threw the case out, saying that the question is best
handled by the legislative or executive branch. On appeal,
the Court of Appeals disagreed and said the case should
proceed to a trial on the merits.
Last October, the U.S. Court of Appeals for the Fifth
Circuit in New Orleans, which is normally thought of as a
conservative court, heard a case in which property owners
in New Orleans are suing major greenhouse gas emitters,
including fossil fuel companies and utilities, for monetary
damages based on the devastation caused by Hurricane
Katrina. Like the Second Circuit, the Fifth Circuit rejected
the argument that determining liability for greenhouse gas
emissions is best left to the legislative or executive branch.
These two cases should send a clear message to major
greenhouse gas polluters that their pollution may have a
hefty price tag down the road.
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