EPA Advisory Panel Splits Over U.S. Technology Rules for Carbon Dioxide

A panel advising the Obama administration on carbon dioxide regulations is deadlocked over what pollution-cutting technology power plants, factories and refineries should be required to use starting in 2011.

After nearly a year of talks, the work group couldn’t reconcile “divergent points of view,” according to a copy of its report to the Environmental Protection Agency. Companies represented on the panel included utilities American Electric Power Co. and Southern Co. It also included officials from national environmental groups and state regulatory agencies.

“There were points in this process where you could not get enough Novocain to make it bearable,” said David Doniger, a policy director at the Natural Resources Defense Council and a member of the 45-member Climate Change Work Group established in October 2009 by the EPA.

The federal agency plans to enforce greenhouse gas limits under the existing Clean Air Act after Congress failed to pass a new cap-and-trade law in which companies would have bought and sold the right to pollute. Starting next year, some newly built or modified sources of industrial pollution, such as power plants, would have to use the “best-available” technology to cut their carbon output.

Photographer: Saul Loeb/AFP/Getty Images

Smoke stacks at American Electric Power's Mountaineer coal power plant in New Haven, West Virginia. Close

Smoke stacks at American Electric Power's Mountaineer coal power plant in New Haven, West Virginia.

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Photographer: Saul Loeb/AFP/Getty Images

Smoke stacks at American Electric Power's Mountaineer coal power plant in New Haven, West Virginia.

Best Available

The EPA hasn’t yet announced what it considers the best- available technology and the work group was established to help the agency make that decision. While the deadlock won’t stop the EPA from moving ahead, it shows the agency will have a fight on its hands no matter what it decides, said Peter Glaser, a Washington-based partner at law firm Troutman Sanders LLP.

“We are going to have a very long, protracted, litigated debate,” Glaser, whose clients include coal-mining companies, said in a telephone interview.

The EPA’s plans are already under attack in federal court, with at least four lawsuits challenging recent decisions by the agency concerning greenhouse gases, Glaser said.

In Congress, a Republican-led effort to strip the agency of its authority over greenhouse gases was defeated in the Senate in June. Still, some Democrats, including West Virginia Senator Jay Rockefeller and Texas Representative Gene Green, have called for a two-year suspension of the agency’s carbon rules for industrial sources to give lawmakers more time to come up with another plan.

Extreme Reluctance

During the work group’s negotiations, some companies that own and operate power plants were “extremely reluctant” to make any concessions, Doniger said in a telephone interview.

They rebuffed proposals to use the best-available- technology requirement to force some power plants to switch from coal to cleaner burning natural gas, Doniger said. Mandated improvements in energy-efficiency, which would cut emissions by saving fuel, and technology that converts coal into a synthetic gas were also rejected, he said.

“The circumstances don’t seem to be right for negotiating,” Doniger said.

Power companies are fighting efforts to define the best- available technology because they reject the idea of regulating greenhouse gases from industrial sources under the Clean Air Act, John McManus, American Electric’s vice president of environmental services and a member of the EPA’s advisory panel, said in a telephone interview.

Regulatory Debate

While the Supreme Court ruled in 2007 that greenhouse gases could be regulated under the Clean Air Act, the regulatory programs established by the statute aren’t up to the task, McManus said.

Those programs work for problems like smog and acid rain because there is proven “back-end control technology” that can be fitted to the smokestack of a power plant to capture those pollutants, he said.

Equipment that captures and stores carbon dioxide is still being developed, with the Obama administration spending $1 billion on revamping an Illinois power plant to test the viability of capturing carbon dioxide and sending the gas via pipeline to sites where it will be stored underground. American Electric is also testing carbon-capture technology at a coal- fired plant in West Virginia.

The Clean Air Act “was never intended for an issue like this one” and the EPA should give Congress more time to pass legislation that includes greenhouse-gas limits while recognizing carbon-capture technology isn’t ready yet, McManus said.

‘More Rational’

“We really need legislation that comes up with a more rational system,” he said.

The EPA should be allowed to regulate the greenhouse gas that scientists have linked to climate change because they pose a danger to the public, Georges Benjamin, the executive director of the American Public Health Association, said on a conference call with reporters.

Climate change raises the risk of heat waves and other “weather-related stress” that are most harmful to children, the elderly and the chronically ill, Benjamin said. The public health group opposes any effort to “weaken, delay or block the EPA” from imposing limits on carbon dioxide and other greenhouse gases, he said.

The EPA’s decision on what constitutes best-available technology for limiting greenhouse gases won’t be binding on state and local air quality agencies, Bill Becker, executive director of the National Association of Clean Air Agencies, said in a telephone interview.

Under the Clean Air Act, the EPA’s definition of best- available technology is a guidance document for the state and local authorities who decide on a case-by-case basis which power plants, factories and refineries need to install new pollution controls, Becker said.

“It’s guided by EPA materials but it is a decision by the permitting authority, not by EPA,” he said.

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To contact the reporter on this story: Simon Lomax in Washington at slomax@bloomberg.net.

To contact the editor responsible for this story: Dan Stets at dstets@bloomberg.net.

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