Fight over US EPA air pollution rules

Frosty response to EPA’s air pollution standards, despite huge public benefits. Photo: Let Ideas Competete / Creative Commons

Industry pressure to relax new air pollution control legislation – challenges to EPA’s final power plant transport and air toxics rules in courts, Congress.

Air pollution from power plants in the United States could be substantially reduced in the coming years if two new power plant rules are implemented, but industry is fighting to delay and even kill them. The US Environmental Protection Agency (EPA) finalised the first rule in July 2011, the second in December 2011.

The new Cross-State Air Pollution Rule (CSAPR) addresses power plant pollution that is transported in the atmosphere downwind across state lines. CSAPR replaces and strengthens the 2005 Clean Air Interstate Rule (CAIR), which the US Court of Appeals ordered EPA to revise in 2008. By 2014, this rule and other state and EPA actions are expected to reduce power plant SO2 emissions by 73 per cent from 2005 levels, and NOx emissions by 54 per cent.

According to the EPA, the new rule, which affects 27 states in the eastern half of the country, will reduce air pollution, such as smog and soot, in communities that are home to 240 million Americans. Health benefits include the prevention of up to 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 cases of acute bronchitis, 400,000 cases of aggravated asthma, and 1.8 million sick days a year beginning in 2014. These health benefits are valued at US$280 billion per year in 2014.

Moreover, the emission reductions will help to improve visibility in state and national parks and give better protection to sensitive ecosystems, such as Appalachian streams, Adirondack lakes, estuaries, coastal waters, and forests.

The benefits far outweigh the US$800 million projected to be spent annually on this rule in 2014 and the roughly US$1.6 billion per year in capital investments already underway as a result of CAIR.

Despite the huge public health benefits and the low cost of CSAPR, since its publication last summer, over 40 separate petitions seeking judicial review of the rule have been filed in the US Court of Appeals by industry and their allies. Many of these seek to prevent the rule from being implemented until the lawsuits are decided, which could take a year or longer. At the end of 2011, the court granted a stay of the rule, but ordered an expedited schedule for hearing arguments on the rule’s validity. The court will hear the case in April, and likely issue its decision by this summer.

Various attempts to overturn the rule in Congress have failed.

In December 2011 the EPA also finalised the first nationwide emission limits for mercury and other toxic airborne pollutants emitted by existing coal- and oil-fired power plants. Under the US Clean Air Act, the existing power plants will have up to three years, and in some limited cases, four years, to comply with these new requirements.

The new standards are expected to prevent 11,000 premature deaths and 4,700 heart attacks a year. They will also prevent 130,000 cases of childhood asthma symptoms and about 6,300 fewer cases of acute bronchitis among children each year.

EPA has calculated that for every dollar spent to reduce pollution from power plants, the American public will see up to US$9 in health benefits. The total health and economic benefits of this standard are estimated to be as much as US$90 billion annually.

According to a modelling analysis by the EPA, the power plant rules will force pollution control installations on many plants that are currently uncontrolled. Additionally, industry’s economic choices could potentially drive decisions to retire some older, under-utilised coal-fired power plants, on the order of 10 gigawatts (GW) of capacity (leaving 95 per cent of the current coal fleet still in operation, by EPA estimates).

By contrast, some industry sources argue that the combined effect of the new EPA rules could result in the early retirement of up to 80 GW of coal-fired electricity generation nationwide over the next ten years.

In a more recent analysis, reported by Platts last October, consultancy ICF International estimates that there could be coal plant retirements of up to 40 GW over the next two decades due to EPA regulations. Most of the retirements are expected to take place among smaller and older plants.

While some in industry complain, others support the rules. Exelon Corporation, for example, has advocated quick adoption of the EPA rules. And environmental groups support the EPA’s regulations. Ann Weeks, of Clean Air Task Force, the lead attorney in the deadline suit forcing the power plant pollution rules, says “Industry has been on notice since 2000 that these rules were pending – under the law they should have been issued by EPA in 2002. As such they are already almost ten years overdue, and industry arguments about needing more time ring exceptionally hollow.”

Moreover, Mary Anne Hitt, director of the Sierra Club’s Beyond Coal Campaign, said to the Environmental News Service (ENS), “The coal plants targeted for phase-out lack modern pollution controls and contribute to thousands of premature deaths, asthma attacks and heart attacks every year. It is time to replace these dirty and dangerous energy sources with clean, safe and reliable forms of production that will create thousands of jobs and revitalise local communities.”

In early October, an industry lobbying group, backed by 24 states and a territory, urged a federal court to take the extraordinary step to override a consent decree to which the groups and states were not parties. The motion sought to require the EPA to delay its proposed air pollution rules for power plants by 12 months, asserting that EPA needed more time to finalise the rules. The court denied the motion.

Once the rule was published this winter, industry and their allies immediately filed three petitions seeking judicial review in the same US Court of Appeals as CSAPR.  No schedule for hearing this latest industry challenge has yet been set.

Adding to the pressure on the EPA to relax and delay its proposals, the Republicans in the US House of Representatives have passed several bills aiming to block the EPA rules. However, the US Senate has thus far turned away each of these bills presented to it. Even were a subsequent bill to pass in the Senate, it would need to be signed by President Obama, whose administration has strongly supported these rules to date.

Christer Ågren
David Marshall (Clean Air Task Force)

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Wide public support for air pollution control

A nationwide public opinion poll carried out in September 2011 showed that voters of both political parties and in all regions of the United States support the EPA’s new rules to limit air pollution from coal-burning power plants. Two-thirds of the respondents oppose Congress delaying implementation of the air pollution rules.

The poll found that support for the air pollution rules extends across the political spectrum. Three-quarters of the public believe that the EPA, not Congress, should determine whether stricter limits are needed on air pollution from electric power plants, and this is a view supported by members of all parties, with 85 per cent of Democrats, 62 per cent of Republicans, and 79 per cent of Independents in agreement.

Among the poll’s key findings were that:

  • 67% of voters polled support the Cross-State Air Pollution Rule and 77% of voters support the Mercury and Air Toxics Standards Rule.
  • 65% of voters surveyed are confident that the health and environmental benefits of air pollution standards outweigh the costs of complying with them.
  • 79% of voters surveyed agree that the rules are important to enact for health reasons.
  • 75% of voters polled believe a compelling reason to implement these rules is the boost to local economies and thousands of new jobs that will be created from investments in new technology.

Source: ENS, 12 October 2011

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