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August 23, 2012

What Does This Week's Cross State Air Pollution Ruling Mean for Coal?

Coal pileAs I wrote in my column earlier this week, on Tuesday the DC circuit court issued a ruling blocking the Environmental Protection Agency's Cross State Air Pollution standard, which governs coal plant emissions of sulfur and nitrogen in 28 eastern states. Now that we've all had a couple of days to digest the ruling, we have a better sense of what the ruling means for coal.
While the ruling creates a temporary delay, it does not change the reality that too much coal pollution is crossing state lines in 28 eastern states, and that this air pollution has to be cleaned up. The only question now is when, and how. Whether the full court rehears this case and affirms the rule, or whether the Environmental Protection Agency goes back to the drawing board and issues a new standard, these pollution reductions still will happen.

Dragging out the uncertainty on their cleanup obligations for another year or two is certainly no boon to the coal industry. In the absence of any clear standards right now, regulators and ratepayers should be even more hesitant to invest enormous sums of money in old coal plants -- especially since future cleanup standards should be even stricter than the current rule.

For example, the Environmental Protection Agency is in the process of strengthening health-based air quality standards for both smog and soot, which any Cross State Air Pollution protection ultimately must satisfy. The nation's top scientists continue to reaffirm that our children and communities need stronger protection from these damaging pollutants. So the coal industry can run, but it cannot hide.

Therefore, should the Environmental Protection Agency end up issuing a new Cross State Air Pollution protection, it may well be even stronger than the current one to meet the new soot and smog standards.

In its 2-to-1 decision, the court found that the Environmental Protection Agency had erred in:
  1. Setting pollution reduction targets for some states that the court felt were too high, and
  2. In not first giving the states the chance to come up with their own pollution reduction plans, or state implementation plans, to meet these targets.

Of course, our view is that the states have had many years to make these reductions and they haven't done it, which is why so many downwind states -- like New York -- joined the suit to demand these cross-state pollution standards in the first place. In an opinion that  has been described as "blistering" and "withering," the dissenting judge wrote that she felt the court had severely overstepped its authority in blocking this standard, among other things.

Going forward, the Environmental Protection Agency has two options:

  • Petition for rehearing (by either this panel of judges or the full court),
  • Go back to the drawing board and rewrite the rule.

In the meantime, the prior standard, the Clean Air Interstate Rule, remains in place.

The Sierra Club is pushing for an aggressive, timely petition to get a rehearing and reversal of the decision, and you can join us by taking action here.

We and many other clean air supporters are working to make sure the Environmental Protection Agency, state environmental agencies, public utility commissions, and other stakeholders know that this ruling creates nothing but more chaos and uncertainty for the industry, and that getting these protections in place is an urgent priority.

In the meantime, as Bloomberg news reported yesterday, there are other factors at work right now, like low natural gas prices and long-overdue national mercury protections, that will have a far greater influence on decisions utilities are making about particular coal plants. These factors, combined with grassroots pressure from local leaders concerned about coal pollution, have already resulted in 120 coal plants announced for retirement in just the past two years.

Sam Brothwell, a senior utility analyst at Bloomberg Industries, put it this way, in an interview about the cross state decision: "At the end of the day the older, dirtier coal plants are going to close. It's an economic decision."

-- Mary Anne Hitt, Director of the Beyond Coal Campaign


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