09/27/2017 - Regulatory Rollback

GHG New Source Performance Standards for Power Plants

by EELP Staff

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

This rule, also known as “Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Power Plants,” regulates carbon pollution from new or refurbished coal-fired power plants under section 111(b) of the Clean Air Act. In addition, having this rule in place triggers the Environmental Protection Agency’s obligation to regulate carbon pollution from existing power plants under section 111(d) of the Clean Air Act.

Current Status

The 2015 rule is in effect; litigation is suspended indefinitely. North Dakota v. EPA, No. 15-1381 (D.C. Cir.). EPA  published a proposed rule revising the 2015 GHG New Source Performance Standards for Power Plants in the Federal Register on Dec. 20, 2018. The proposal would change EPA’s determination of the best system of emission reduction (BSER) for newly constructed coal-fired units by removing partial carbon capture and storage. In an Oct. 21, 2020 status report filed with the D.C. Circuit EPA states it intends to issue a final rule in the winter of 2020-21.

History

Oct. 23, 2015 EPA publishes a rule setting limits on CO2 emissions from new and refurbished power plants. North Dakota challenges the rule on the same day. North Dakota v. EPA, No. 15-1381 (D.C. Cir.).

Trump Era

March 28, 2017 President Trump’s Executive Order on Promoting Energy Independence and Economic Growth directs EPA to review and “if appropriate . . . publish for notice and comment proposed rules suspending, revising, or rescinding” the NSPS rule. The same day, EPA urges the D.C. Circuit to delay oral argument and suspend the litigation. North Dakota v. EPA, No. 15-1381 (D.C. Cir.).

March 30, 2017 The Court suspends oral argument, scheduled for April 17, 2017. North Dakota v. EPA, No. 15-1381 (D.C. Cir.).

April 4, 2017 EPA publishes its intent to review the rule.

April 28, 2017 The D.C. Circuit puts the litigation on hold for 60 days and orders EPA to file 30-day status reports. North Dakota v. EPA, No. 15-1381 (D.C. Cir.).

Aug. 10, 2017 The D.C. Circuit suspends litigation indefinitely and orders EPA to file 90-day status reports beginning Oct. 27, 2017. North Dakota v. EPA, No. 15-1381 (D.C. Cir.).

July 25, 2018 EPA submits its fourth 90-day status report with the D.C. Circuit. The report states that EPA plans to send a proposed section 111(b) package to OMB in August. This is the final step before it can be published.

Oct. 23, 2018 EPA files another 90-day status update with the D.C. Circuit on its progress in preparing a proposed rule revision. EPA indicates that it submitted a draft Notice of Proposed Rulemaking to the Office of Management and Budget for interagency review on Sep. 7, 2018. EPA said it expects the interagency review will be completed in time to publish the rule in the Federal Register in Dec. 2018.

Dec. 6, 2018 EPA releases proposed revisions to the 2015 GHG New Source Performance Standards for Power Plants. The proposal changes the EPA determination of what is the best system of emission reduction (BSER) for newly constructed coal-fired units. It replaces partial carbon capture and storage with steam cycle in combination with operating practices as BSER.

Dec. 20, 2018 EPA publishes its proposed revised GHG New Source Performance Standards for Power Plants released on Dec. 6 in the Federal Register.

Feb. 7, 2019 EPA extends the public comment period to March 18, 2019 and notes a public hearing is scheduled in DC for Feb. 14, 2019. Comments may be submitted on the proposal here.

Oct. 21, 2020 EPA files its latest status report with the D.C. Circuit regarding the status of its proposed rule. The report states that EPA intends to issue a final rule in the winter of 2020-21.