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Joint Comments of Environmental and Public Health Organizations on The Joint Comments of Environmental and Public Health Docket No. Organizations on the Best System of Emission Reduction EPA-HQ-OAR-2017-0355 and Other Issues in EPA’s Proposed Emission Guidelines for Greenhouse Gas Emissions From Existing Electric Submitted via Utility Generating Units; Revisions to Emission Guideline regulations.gov Implementing Regulations; Revisions to New Source Review Program October 31, 2018 Environmental and public health organizations1 Appalachian Mountain Club, Center for Biological Diversity, Clean Air Council, Clean Air Task Force, Clean Wisconsin, Coalition to Protect America’s National Parks, Conservation Law Foundation, Earthjustice, Environmental Defense Fund, Environmental Law & Policy Center, Minnesota Center for Environmental Advocacy, National Parks Conservation Association, National Wildlife Federation, Natural Resources Defense Council, Sierra Club, and Union of Concerned Scientists hereby submit the following comments on the “best system of emission reduction” and other issues relevant to EPA’s proposed rule “Emission Guidelines for Greenhouse Gas Emissions From Existing Electric Utility Generating Units; Revisions to Emission Guideline Implementing Regulations; Revisions to New Source Review Program,” 83 Fed. Reg. 44,746 (Aug. 31, 2018). Many of the sources cited in these comments are being submitted in an appendix to this docket, or were submitted to this docket on Apr. 20, 2018, in the “Joint Appendix of Environmental and Public Health Organizations and States Regarding the Proposed Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units.” 1 Questions about this submission may be addressed to: Jay Duffy Ben Levitan Clean Air Task Force Environmental Defense Fund 114 State Street, 6th Floor or 1875 Connecticut Avenue, Suite 600 Boston, MA 02109 Washington, DC 20009 Tel: (802) 233-7967 Tel: (202) 572-3318 Email: [email protected] Email: [email protected] Table of Contents I. INTRODUCTION .................................................................................................................. 1 II. EPA’S PROPOSAL TO EFFECTIVELY REPEAL THE CPP IS ARBITRARY AND UNLAWFUL. ................................................................................................................................. 3 A. EPA Has Unlawfully and Arbitrarily Rested Its Proposal on an Error of Law and Has Failed to Undertake Reasoned Decisionmaking. ........................................................................ 3 B. The System of Emission Reduction Underlying the Clean Power Plan Is a Lawful, Rational, and Better Means of Reducing Emissions from the Source Category than the Proposed Replacement—and EPA Has Offered No Reasoned Basis for Concluding Otherwise. ................................................................................................................................... 7 III. THE PROPOSAL FAILS TO FULFILL EPA’S DUTY TO DETERMINE THE BEST SYSTEM OF EMISSION REDUCTION AND ISSUE EMISSION GUIDELINES UNDER SECTION 111(D) AND ARBITRARILY IGNORES THE CONSEQUENCES OF THAT FAILURE. ..................................................................................................................................... 12 A. The Proposal Fails to Set a Quantitative Pollution Limit or Establish Any Required Timeline for Pollution Reductions, Flouting EPA’s Obligations Under Section 111. ............. 12 B. EPA Arbitrarily Failed to Consider that the Proposal Would Incentivize a Race to the Bottom and Fail to Internalize the Costs of Pollution, Thus Thwarting the CAA and Section 111................................................................................................................................ 14 C. The Proposal Unlawfully Fails to Ensure that States “Shall” Establish Sufficient “Standards of Performance.” .................................................................................................... 15 1. EPA’s obligation to ensure states establish adequate standards of performance is not diminished by section 111(d)’s reference to remaining useful life or other factors. ............ 16 2. ACE fails to provide requirements sufficient to ensure that states set adequate standards of performance, making state plans less likely to achieve compliance with the Clean Air Act. ....................................................................................................................... 17 IV. EPA’S APPROACH TO CHOOSING THE BEST SYSTEM OF EMISSION REDUCTION IMPOSES ARBITRARY, UNLAWFUL CONSTRAINTS THAT DEFEAT THE STATUTORY PURPOSE. .................................................................................................................................... 18 A. EPA’s Evaluation of Potential Systems of Emission Reduction and Statutory Interpretation Unlawfully Fails to Give Appropriate Consideration to the Emission Reductions that Can Be Achieved Through Different Systems. .................................................................. 18 B. EPA’s Selective List of Suggested HRI Measures Does Not Comprise the “Best System”—or Indeed Any “System”– Because EPA Does Not Define Which Combination of Technologies Constitutes the System or Explain Why that Combination of Technologies Is the Best...................................................................................................................................... 19 C. Any Final Rule Replacing the CPP Must Use Updated Information, Must Use the “Best” System of Emission Reduction, and Would Yield More Ambitious Pollution Reductions than the CPP Requires. .......................................................................................... 21 ii 1. Trends in the power sector make meaningful pollution reductions even more feasible and less costly than when the CPP was finalized. ................................................................ 23 2. Recent modeling shows significant pollution reduction potential can be achieved at low cost. ................................................................................................................................ 29 3. EPA must issue stringent pollution limits to ensure continued progress on pollution reduction and prevent backsliding. ....................................................................................... 32 D. The Proposal’s Exclusion of Virtually All Measures that Would Meaningfully Reduce Pollution, and Measures that Power Companies and States Have Been Principally Using to Reduce Carbon Pollution for Many Years, Is Arbitrary and Unlawful. ................................... 38 1. EPA’s objections that the CPP best system of emission reduction exceeds its expertise and will “challenge” the grid are baseless. ............................................................ 38 2. The “redefining the source” policy does not apply to standards of performance under section 111, and none of the relevant systems of emission reduction unlawfully redefine the source. ................................................................................................................................... 49 3. EPA cannot rule out a best system of emission reduction on the grounds that it is not universally or widely available. ............................................................................................ 56 V. EVEN UNDER EPA’S FLAWED INTERPRETATION OF “SYSTEM,” THE AGENCY WAS REQUIRED TO SELECT BETTER POLLUTION REDUCTION MEASURES; HEAT RATE IMPROVEMENTS INCREASE EMISSIONS AND CANNOT BE THE BEST SYSTEM. ...................................................................................................................................... 58 VI. EPA’S FAILURE TO DETERMINE A BEST SYSTEM OF EMISSION REDUCTION OR REQUIRE ESTABLISHMENT OF STANDARDS FOR NATURAL GAS-FIRED EGUS IS ARBITRARY AND UNLAWFUL. ............................................................................................. 61 A. Section 111 Requires that EPA’s Emission Guidelines Provide for the Establishment of Standards for “Any Existing Source” that Would Be Subject to New Source Standards if Such Source Were New. .................................................................................................................... 61 B. Natural Gas-Fired EGUs Are Major Contributors to GHGs and Represent a Large and Increasing Proportion of Existing Capacity and Generation. ................................................... 62 C. EPA Has Ignored the Available Information on Opportunities to Reduce Emissions from Natural Gas-Fired EGUs, and Has Failed to Explain Why It Cannot Propose Emission Guidelines for Natural Gas-Fired EGUs. .................................................................................. 62 VII. EPA’S FAILURE TO CONSIDER RELEVANT INFORMATION IN THE RECORD IS ARBITRARY AND CAPRICIOUS. ............................................................................................ 64 VIII. EPA STILL HAS FAILED TO DISCLOSE ANY INFORMATION ABOUT THE REVIEW OF THE CLEAN POWER PLAN CONDUCTED PURSUANT TO EXECUTIVE ORDER 13,783. ............................................................................................................................ 65 iii I. INTRODUCTION EPA has a statutory mandate to reduce carbon dioxide (“CO2”) emissions from existing power plants “to the greatest degree practicable.”2 As Joint Environmental Commenters laid out in detailed comments to this docket, the Clean Power Plan (“CPP”)3 is consistent with this mandate 4 and is a legal and rational means to limit CO2 from existing
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