BREAKING: Obama Pledges to Regulate CO2 from Coal Plants

By Jesse Jenkins

President Barack Obama's Environmental Protection Agency pledged to regulate global warming pollution from coal-fired power plants today, granting a petition filed by the Sierra Club and other environmental organizations. The decision casts an almost palpable shadow of doubt over the fate of roughly 100 proposed coal plants awaiting permits throughout the United States and should offer a brief respite in the ongoing fight against continued reliance on the dirty fossil fuel.

Under the leadership of new EPA Administrator Lisa Jackson, the Agency overturned an unlawful "midnight memo" filed by outgoing Bush EPA admin Stephen Johnson in December that amounted to a last ditch effort to saddle President Obama with the Bush Administration's do-nothing policy on global warming. Today's announcement makes it clear that Obama's EPA will stand by the rule of law and uphold the so-called Bonanza ruling made by the EPA Environmental Appeals Board in November, which concluded that EPA had no grounds to not require "best available control technology" for new coal plants.

"Not only does today's decision signal a good start for our clean energy future, it also signals a return to policy based on sound science and the rule of law, not deep pocketbooks or politics," says David Bookbinder, the lead climate lawyer for the Sierra Club. "With coal-fired power plants emitting more than 30 percent of our global warming pollution, regulating their carbon dioxide is essential to making real progress in the fight against global warming."

As I reported in November, the Bonanza ruling that today's decision upholds concluded that EPA has not justified it's decision to not require the use of "best available control technologies" (or BACT in Clean Air Act legalese) to reduce the global warming pollution spewed from coal-fired power plants.

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 the Bonanza 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 the air permits for new coal-fired power plants can easily be challenged in court, if not held up entirely by permitting agencies. Today's announcement sets of the process of determining what to do about the currently uncontrolled emissions of greenhouse gases from coal plants.

There are several options that seem available to President Obama and his EPA (Editor's Note: I am not a lawyer, so take this with a grain of salt, and head over to Warming Law Blog for forthcoming detailed legal analysis):

1. EPA could move forward to define BACT for CO2. In this case, the definition of BACT is unlikely to require the use of carbon capture and storage (yet), since the technology is not yet readily available. In this case, BACT, for now, 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.
   
   
2. Obama and the EPA could issue a broader endangerment finding for CO2 from coal plants, which would state that CO2 poses a risk to public and environmental health and warrants action under another provision of the Clean Air Act that allows EPA to establish sector-specific emissions performance standards for pollutants. Under such a provision, EPA could require any new coal plants or existing plants undergoing major retrofits to control their emissions to a certain emissions rate - say no more than the emissions of a modern combined cycle natural gas plant. This kind of emissions performance standard, already the law in California and Washington state, would require coal plants to cut their emissions by 50-60% of more. Obama's EPA recently granted California and 13 other states their petition to establish regulations on CO2 emissions from the tailpipes of cars and trucks under this kind of provision, and it would seem to be consistent with the Massachussets v. EPA Supreme Court ruling which paved the way for this kind of regulation. Such a ruling would essentially take the coal industry's promises at their word when they say "clean coal" technologies are on their way and ban all new coal plants that are not fitted with carbon capture and storage technology.
   

Regardless of what rules are ultimately established, this announcement signals the end of the days when CO2 is treated as a harmless byproduct of fossil fuel combustion. It also casts continued doubt on the prospects of any proposed coal-fired power plants that are unable to control their emissions, making new coal plants an even poorer investment decision.

"New coal plants were already a bad bet for investors and ratepayers," says the Sierra Club's Bookbinder. "Today's decisions make them an even bigger gamble."