Cross-posted from WattHead - Energy News and Commentary
BREAKING NEWS: The Sierra Club just won a HUGE legal victory in a coal permitting case at the Environmental Protection Agency’s Environmental Appeals Board.
The ruling in the Bonanza coal plant permitting case (pdf) ruled with the Club’s lawyers that since the Mass. v EPA Supreme Court ruling said Carbon Dioxide is a pollutant under the Clean Air Act, new coal-fired power plants must implement “Best Available Control Technology” (BACT for short) for CO2.
While the Sierra Club’s legal team and other lawyers are still determining the full implications of the decision, it appears that this decision will essentially stop all new coal plant permitting dead in it’s tracks for at least a year as EPA decides what BACT means in the context of CO2.
The BACT provision of the Clean Air Act requires that new power plants must employ the most effective, readily available pollution control technologies for regulated pollutants in order to receive air quality permits required for development, ensuring that new power plants are progressively cleaner as new technologies become readily available. Until this ruling, BACT has only applied to NOx, acid rain-forming SO2, particulate matter, mercury and other noxious pollutants, but not carbon dioxide, which spewed freely from permitted power plants.
What BACT means for CO2 is therefore undefined, and the process of defining it will take time - time during which no new coal plants can receive permits. BACT for CO2 is unlikely to mean carbon capture and storage (yet), since it’s not readily available, but it will probably mean some combination of co-generation (making use of waste heat from electricity generation), efficiency improvements, and/or fuel switching/co-firing with biomass. Ultimately, President-elect Obama’s EPA gets to decide how BACT is defined for CO2, a process which will take at least a year.
In the meantime, 30 permits for new coal-fired power plants in the seven state directly regulated by the EPA’s permitting process, plus projects on all Indian Reservations will immediately die because of this ruling. Other states that do their own permitting under devolution of authority from EPA will have to start their permitting processes over from scratch. They can either decide on a case by case basis what BACT means for CO2, or they can wait for EPA to rule on nationwide basis. The Environmental Appeals Board ruling says that decision is best made on a national basis.
In short, with this new regulatory uncertainty, it’s highly unlikely anyone will want to invest a dime in a new coal plant for the foreseeable future.
Of course, this will also leave President Obama with an interesting ruling to make with some real political ramifications. But I’d say Obama has plenty of cover since the coal industry has been so avidly touting how clean it is these days. The real bold move would be to require all new coal plants to meet an emissions performance standard that essentially means they’d have to sequester at least half their emissions (as in CA or WA state’s emissions performance standards), put an end to mountain top removal coal mining, and really tell the coal industry, “it’s time to put up or shut up” and make this “clean coal” thing they keep talking about a reality.
The Club will have a press release out latter today, and I’d refer you to the Warming Law blog for more detailed legal analysis no doubt coming soon. This was an unexpected ruling, so they’re still sorting out all the ramifications.
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Holy !@#$. This is big. Really big. And the timing couldn’t be better!
YES!
Wow! That’s incredible.
Wow, I’m really curious what the full implications of this decision are. Anyone have a sense of what this means for coal plants that are permitted but not yet constructed, like the ones in Cliffside and Wise?
Ditto on that Whit. I’m very curious what this means for the proposed 1000 MW American Municipal Power Generating Station coal plant here in Ohio - checking on it now in another forum.
My guess is that the Club and others with legal teams will immediately file suits to stop their development and re-examine the permits in light of this ruling. I’m sure they will take full advantage of this ruling to put the full court press on.
From the No New Coal Plants network:
“If a plant already has an air permit that has not been appealed and the appeal period has passed, it doesn’t mean much. If however the permit is in litigation, we can advise the court of this development. And if the plant doesn’t have a permit yet, then the argument can be made that they have to consider CO2 in the BACT analysis. IF the permitting agency fails to do so, then that decision can be appealed to court.”
And this too:
“it really might mean that every coal plant in the country has to go back to the drawing board for its air quality permit”
First, it means higher electricity costs. It could also mean that all the delays will lead to “load shedding”.
I predict that everyones concerns about the temperature rising a few degrees in a hundred years will vanish after they experience a little load shedding in the present.
I think this is certainly a HUGE victory, but I don’t think we should jump to the conclusion that coal is now dead in the US. I haven’t read the full ruling yet - but here’s my initial take.
As many will recall, last year’s Mass v EPA suit basically ruled (in another huge victory) that the EPA had no justification for NOT regulating C02 as a pollutant. However, rather than follow the court’s clear mandate - the EPA basically said “whoa - regulating C02 is a huge can of worms that will impact the entire economy tremendously. This isn’t something for the EPA to do - this needs to be something Congress sorts out” - and the EPA once again, sat back.
This ruling is very similar - effectively telling the EPA they have NO justification for not enforcing Best Available Control Technology (under the Clean Air Act) when looking at air permits for power plants. While this is a huge ruling - it’s also quite likely the EPA will have a similar response to the Mass v EPA suit and sit back again. Certainly, considering it’s a lame-duck administration on it’s way out.
However - this is still good. From a campaigning standpoint - it’s arguably easier to get laws that are already on the books enforced rather than try to get entirely new ones passed. And this does provide a LOT of backing to activists taking direct action to argue that they are actually upholding the laws that regulatory agencies are ignoring.
-Matt
wow! yay! thanks for the update Mattie! I’m hoping that it ends up meaning: “that every coal plant in the country has to go back to the drawing board for its air quality permit”
Although Cliffside’s air permit is in appeal, so it should apply either way. Construction has already begun on Cliffside and Wise plants, and I’m not sure about Wise air permit. The Pee Dee plant in SC is still in the permitting process, as there was just a hearing on the draft air permit in late October. And, for a complete update on the coal plants we’re fighting in the Southeast, the Washington County coal plant in Georgia definitely doesn’t have an approved air permit yet, and the Sierra Club and others helped to stop the Dynegy plant in Early County Georgia with a ruling by a Fulton County Superior Court judge ruling that the new plant must limit its emissions of the heat-trapping gas carbon dioxide. That wraps up my update.
Agreed, this is huge. Do you think the other coal burning powers (Russia, India, China) will take notice to this ruling? What percentage of global coal does the U.S burn? I like the idea of a CO2 tax. When it becomes expensive to produce CO2, people will stop doing it.
Matt, I’m pretty sure the effect of this ruling is more substantive than that. EPA is highly unlikely to make any decision on this during Bush’s last few lame duck days. They just won’t move that fast, which means that Obama’s EPA will have authority to decide what to do with this ruling. I don’t think it’s an option for them to say “we won’t do anything,” although it’s certainly an option to define BACT in a pretty loose way (say, nominal efficiency improvements or something). Whatever they decide, it’ll probably take quite a while, perhaps a year or more, or so my “sources” at the Sierra Club say. In the meantime, all permitting processes for new coal plants will be thrown into question and halted pending the decision. And the resulting regulatory uncertainty will make investors very skittish about putting up a dime for new coal plants (supporting your efforts targeting Citi, Bank of America and others tremendously). So no, coal isn’t dead in America, and we obviously have to keep up the full court press, so to speak. But we’ve just won a HUGE and timely respite from battles against dozens of proposed coal plants still in the permitting process.
Ahhh the legal battles
This is so great! Good things are ahead. Thank you to anyone who worked on this project from my kids (they don’t exist yet).
My understanding is that this specifically applies to the plants that are under the EPA’s jurisdiction for permitting. There are other permitting entities that may have authority over some of the specific coal plants you all are working to stop, so it doesn’t necessarily mean that they would be halted. However, since most of the other agencies take their cues from the EPA, it’s likely that this will give them pause…which gives us more time to work our magic.
Juliana, any idea what ramifications this will have for Big Stone II in eastern SD. I know it is in the MN PUC’s hands at this point. I had heard the PUC (all members appointed by Gov. Pawlenty) have been moving in a conservative direction and there were some worries that their upcoming decision would not be something we would like. Hopefully this gives them some pause.
Juliana, I think you are correct: this ruling only directly affects the seven states under direct permitting jurisdiction of the EPA as well as projects on all Native American lands. That’s a total of 30 pending coal plants I believe, so that’s no small beans. Other states that have their own permitting authority do so at delegation of authority form the EPA. So this ruling will certainly give them pause, and will also give legal teams for folks like NRDC, Earthjustice, Sierra Club and local environmental law organizations plenty of reason to contest every single permit out there. I’ll keep my eye out as more legal analysis pops up and keep you all updated. Anyone else with news, post it here.
GOOD STUFF here in Australia we are also fed up with the filthy coal industry and their coal is so good propaganda.Even if you look at clean coal you can see that it is nothing more than a hoax to get clean coal you would have to be able to mine it clean first.What these morons mean is mine the coal pollute the air with 21 poisonous chemicals 9 of these are cancer causing this info can be found on the npi.gov.au here in Australia then you put in the postcode of your coal town and wella there it is a toxic cocktail for every living thing on the planet to breathe and drink.So dig up coal poison our environment then burn the coal and burry the filth back underground and call it clean coal.Then you have the problem of coal ash dumps which leach cancer causing chemicals back into the underground water table to pollute the last remaining clean drinking water that we have.Coal is nothing more than black lies told a by small minority of people to feed their greed at a cost to us and the planet so again at least it is a leap in the right direction for the future of the world.
I am an experienced anticoal warrior because at the moment they have me surrounded in my home that i created with my own water supplie which i use only what i need my own solar power station and also my own food that i grow these people are nothing more than criminals and thugs and have to be stopped by the people we dont own the earth to trash and burn like these people do.We are caretakers of the planet and that means to take care.
ROB n s w AUSTRALIA
Jason - I was at the PUC evidential hearing on Wednesday. Although I can’t be certain, from my judgment it’s looking pretty good for us. In June, two PUC members voted against the plant, two for it, and the chair said he needed more evidence. They contracted out a study to Boston Pacific, who said that Otter Tail was grossly underestimating the future costs of CO2 regulation. During the hearing, it seemed like the Boston Pacific team was pretty solid and willing to stand up to the coal advocates. I’ll probably make a post about it once we find out something definitive…
I’m just wondering. With the US delicately balanced regarding electricity supply/demand, with no new large plants of any type on the horizon just what will happen when those coal fired plants start closing if bean counters decide it’s easier to shut up shop than keep producing electrical power. The US burns 1.06 Billion tons of coal every year to produce 50% of its total power. At 2.86 tons of CO2 per ton of coal burnt, the CO2 emission just from that alone is 3.03 BILLION tons each and every year. A new tax on those coal fired power plants will see an increase on your power bill of between 50 and 60%. Take out you last bill and look at how much you paid, and then add that extra. Any replacement plants are at least ten years off into the future at best estimates, considering they also have to go through the legal hoops to get plants up and running too. Those replacement costs are also immense, and the consumer will pay for that too. It’s great to say let’s replace coal, but you just can’t turn off the power with nothing to replace it with.
A LITTLE BIT OF NEGATIVITY IN THE CELEBRATION! You must all be millionaires! Wonderful ruling? 60% of US electric power is coal fired. Maybe wind or nuclear is the long term answer, but in the mean time I guess we suffer either “out of site” electric bills in order to finance compliance or in the alternative as plants are shut down, perhaps we join the dark ages, brown outs etc. Why not put all the “energy” into developing alternative power while we can still afford/have lights to shine on the engineering plans? Oh, and what about all the poor guys and gals who will lose their jobs? Sorry for the negativity but I see it as a false win.