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GHG New Source Performance Standards for Power Plants

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Quick Take

On May 23, 2023, EPA proposed standards for new gas plants. EPA held three virtual public hearings on July 13, 14, and 15th, 2023 and closed its comment period on August 8, 2023. On Nov. 15, 2023, EPA issued a supplemental proposal soliciting comment on reliability mechanisms to include in the final rule with comments due 30 days after publication in the Federal Register. Read our summary of the rule here: EPA’s Proposed Greenhouse Gas Emission Standards for Power Plants are Consistent with Statutory Factors and Market Trends.

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

On Jan. 13, 2021 EPA issued a final rule that makes a pollutant-specific significant contribution finding for newly constructed coal-fired units.  Although EPA had not previously considered pollutant-specific significant contribution findings necessary because the agency makes a finding of significant contribution for the source category when it lists it, EPA questioned in the proposal whether it needed to make such a finding in a footnote of the 2018 proposal. EPA also finalized a new threshold of 3% of total US GHG emissions for finding sources contribute significantly to dangerous air pollution due to their GHG emissions. EPA did not finalize its proposal to change the best system of emission reduction (BSER) for new power plants.

President Biden’s Jan. 20, 2021 Executive Order 13990 requires EPA to consider suspending, revising, or rescinding the Jan. 2021 final rule establishing a 3% threshold of total US GHG emissions before regulation of a source is warranted. On April 5, 2021, the D.C. Circuit vacated and remanded the rule to EPA.

On Apr 21, 2022, EPA released a white paper exploring control techniques and measures to reduce GHG emissions from stationary combustion turbines. Comments on the paper, due June 6, 2022, will inform EPA’s new NSPS under section 111 and help states and regulated entities consider measures as part of the prevention of significant deterioration (PSD) permitting program. On May 23, 2023, EPA proposed standards for new gas plants. Read our summary of the rule here: EPA’s Proposed Greenhouse Gas Emission Standards for Power Plants are Consistent with Statutory Factors and Market Trends. On Nov. 15, 2023, EPA issued a supplemental proposal soliciting comment on reliability mechanisms to include in the final rule with comments due 30 days after publication in the Federal Register. 

Obama Administration
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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 administration
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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.

Jan. 13, 2021 EPA issues a final rule that makes a pollutant-specific significant contribution finding for newly constructed coal-fired units but does not finalize its Dec. 20, 2018 proposal to change the best system of emission reduction (BSER). EPA had questioned whether it needed to make such a finding in a footnote of the 2018 proposal. EPA has not previously considered pollutant-specific significant contribution findings necessary because the agency makes a finding of significant contribution for the source category when it lists it. Additionally, EPA establishes a new threshold of 3% of total US GHG emissions for finding sources contribute significantly to dangerous air pollution due to their GHG emissions. Applying this threshold, the agency finds the units’ GHG emissions contribute significantly. The agency introduced the requirement of a pollutant-specific significant contribution finding in its oil and gas GHG standards rule as well (see more about that here).

Biden Administration
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Jan. 20, 2021 President Biden’s Executive Order 13990 requires EPA to consider suspending, revising, or rescinding the Jan. 2021 final rule establishing a 3% threshold of total US GHG emissions before regulation of a source is warranted.

March 17, 2021 EPA asks the D.C. Circuit to vacate the Jan. 2021 significant contribution rule for newly constructed coal-fired units due to procedural defects and requests that the court remand it to the agency. California v. EPA, 21-1035 (D.C. Cir.).

Apr. 5, 2021 The D.C. Circuit issues an order vacating and remanding to EPA the Jan. 2021 significant contribution rule. California v. EPA, 21-1035 (D.C. Cir.).

Apr. 21, 2022 EPA releases a white paper summarizing control techniques and measures to reduce GHG emissions from stationary combustion turbines. The measures explored include efficiency improvements, integrated renewables, CCUS, and hydrogen. Comments are due by June 6, 2022.

Aug. 16, 2022 President Biden signs the Inflation Reduction Act, which expands tax credits for carbon capture and hydrogen, which could change the cost impacts of these technologies when EPA considers NSPS for power plants. Read more about the IRA’s impacts on the power sector here.

Sept. 8, 2022 EPA opens a nonregulatory docket to collect public input to guide the agency’s efforts to reduce GHG from new and existing fossil fuel-fired electricity generating units (EGUs). The docket will be open for public comment until March 27, 2023.

Dec. 8, 2022 The Environmental Defense Fund (EDF) and the Sierra Club file suit against the EPA for failing to update NSPS for new combustion turbines. The Administrator is required to update these standards every eight years, but has not done so in 16 years. EDF and Sierra Club are seeking injunctive relief to compel the EPA to issue a final revision of NSPS rule by December 15, 2023 at the latest. Environmental Defense Fund et al v. United States Environmental Protection Agency, Docket No. 3:22-cv-07731 (N.D. Cal. Dec 07, 2022). 

Mar. 15, 2023 EPA sent the proposal for NSPS for GHG Emissions from New, Modified, and Reconstructed Fossil Fuel-Fired EGUs; EGs for GHG Emissions from Existing Fossil Fuel-Fired EGUs; and Repeal of the ACE Rule (RIN 2060-AV09 and 2060-AV1) to the Office of Management and Budget for final inter-agency review before publication.

May 11, 2023 EPA issued a pre-publication version of proposed standards for new gas plants. EPA will accept comments for 60 days after publication in the Federal Register. See a graphic overview of the proposed rules here: EPA proposes new rules to combat climate changing pollution from power plants.

May 23, 2023 EPA published its proposed standards for new gas plants in the Federal Register. EPA will accept comments until July 24, 2023. Read our summary of the rule here: EPA’s Proposed Greenhouse Gas Emission Standards for Power Plants are Consistent with Statutory Factors and Market Trends.

June 12, 2023 EPA extended the comment deadline to August 8, 2023.

June 13, 14, and 15, 2023, EPA held virtual public hearings on the proposal.

July 7, 2023 EPA publishes its Integrated Proposal Modeling and Updated Baseline Analysis Memo that incorporates estimated impacts of the proposed rule for existing combustion turbines.

June 13, 14, and 15, 2023, EPA held virtual public hearings on the proposal

Aug. 8, 2023, EPA closed the public comment period on the proposal. Find all submitted comments here.

Oct. 26, 2023 EPA sent a supplemental notice seeking input on regulatory flexibilities for small entities to the Office of Management & Budget for review before publication. The notice will provide an opportunity for public comment on regulatory flexibilities proposed by the Small Business Advocacy Review (SBAR) panel. EPA expects the notice will become public before the end of 2023.

Nov. 15, 2023 EPA issued a supplemental proposal soliciting comment on reliability mechanisms to include in the final rule and an Initial Regulatory Flexibility Analysis (IRFA) following the completion of a Small Business Advocacy Review (SCAR) penal for the proposed rule. Comments will be due 30 days after publication in the Federal Register.