The attorneys general said that the proposed rule is unlawful because, among other things, EPA has chosen to regulate coal-fired power plants under Section 112 of the Clean Air Act. Section 111(d) specifically prohibits EPA from invoking that same section of the law [Section 111(d)] where the “source category . . . is regulated under” Section 112, the attorneys general said.
“Given the multitude of legal deficiencies in its proposal, some of which go to the heart of its authority to regulate fossil-fuel-fired power plants under Clean Air Act Section 111(d), EPA should honor the Act’s core statutory limitations on its authority and formally determine that Section 111(d) standards are not appropriate for fossil fuel-fired power plants,” they argued.
If EPA does finalize Section 111(d) standards for fossil-fuel-fired power plants, “it should not perpetuate the unlawful act by attempting to reorganize states’ energy economies, but should instead promulgate emission guidelines based on the best system of emission reduction that is actually achievable at individual facilities, which states could then consider in establishing performance standards to individual power plants in their jurisdictions,” the attorneys general added.
Stating that the EPA’s Mercury and Air Toxics Standard rule will cause the retirement of more than 34 gigawatts of fossil fuel-fired electric generating capacity, the attorneys general went on to cite a NERA Economic Consulting study that projects the EPA’s proposed plan for existing plants will result in between 46 and 169 additional gigawatts of capacity being retired unless EPA makes significant corrections.
Specifically, the study projects coal-unit retirements of between 97 and 220 gigawatts, as compared to 51 gigawatts under a baseline scenario, the attorneys general said.
“Retirements on this scale are likely to seriously threaten the reliability of our nation’s electric supply,” they argued. “State regulators and industry stakeholders have warned that the proposal will force them to choose between meeting its requirements at the risk of potentially violating” Federal Energy Regulatory Commission reliability mandates, “or complying with those mandates at the risk of failure to comply with the proposal.”
The attorneys general also said that the plant retirements “are likely to impose significant costs on ordinary citizens throughout the country. The NERA study projects an increase in total consumer energy costs of between $366 billion and $479 billion over the period 2017-2031.”
The comments were submitted by attorneys general from the following states: West Virginia, Oklahoma, Nebraska, Alabama, Florida, Georgia, Indiana, Kansas, Louisiana, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota, Utah and Wyoming.
WECC also weighs in
Meanwhile, the Western Electricity Coordinating Council (WECC) is recommending that the agency provide adequate time to identify reliability implications of proposed state compliance plans.
WECC on Nov. 25 posted its comments to EPA on WECC’s website. Since WECC does not operate, site, or own generation or transmission infrastructure, it has no direct economic interest in how states comply with the EPA’s proposed plan, it noted.
“However, the implementation plans that states will develop to comply with the proposed Clean Power Plan will drive BES changes that must be assessed to assure continued reliable operation of the Western Interconnection,” WECC went on to say.
WECC said that the EPA should allow at least 180 days following the filing of state compliance plans for the North American Electric Reliability Corporation (NERC), WECC, and other reliability entities to concurrently evaluate the potential reliability impacts of those plans.
The proposed plan “is complex and could have far-reaching and possibly unforeseen impacts. The success of a state’s compliance plan and the reliability” of the bulk electric system “are best served if the complying states and participating utilities, transmission planning regions, and other stakeholders are provided ample time for reliability analyses,” WECC said. This would provide additional time for evaluation of reliability implications, multi-state planning and infrastructure investments, the council said.
WECC also said that the EPA should create and communicate a process for reliability entities such as WECC to highlight reliability implications of any state compliance plan in the Western Interconnection.
“As the reliability assurer for the Western Interconnection, WECC requests that the EPA consider the range of [bulk electric system] reliability issues that may result from the implementation” of the proposed plan “and allow time for necessary studies and reliability assessments, state planning, and industry development processes.”
WECC recommended creating a process within the proposed plan that considers timing adjustments or the granting of extensions if there is a demonstrable reliability need identified. “Once states develop implementation plans, WECC will be able to consider additional analyses to understand the reliability impact on an interconnection-wide basis,” the council added.