June 19, 2014

Coal power plants and the ESA

By Damien M. Schiff Senior Attorney

Yesterday, EPA published in the Federal Register its proposed rule for reducing greenhouse gas emissions from existing coal-fired power plants.  The rule has already garnered much criticism from industry, in particular for its reliance on a variety of “outside the fence” measures for reducing emissions from the existing power plants.  Industry argues that, under the relevant Clean Air Act provisions, EPA is limited to suggesting various standards of performance that directly regulate the quality and quantity of emissions from power plants.  Consequently, argues Industry, EPA has no authority to suggest various indirect measures, such as increased reliance on renewable energy sources, to reduce emissions from existing coal-fired power plants.

Another interesting issue raised by EPA’s proposed rule is the agency’s decision not to consult with the Fish and Wildlife Service over the rule’s impact on endangered species, notwithstanding EPA’s acknowledgement that wind and solar energy often has negative impacts on wildlife and habitat.  EPA reasons that consultation is not necessary because its proposed rule does not require states or Industry to use renewable energy.  That may be true, but it will undoubtedly be much harder for regulated entities to meet the emission reductions that EPA expects without reliance on renewable energy, given that EPA calculated the expected emission reductions based in part on reliance on renewable energy.  Nevertheless, some judicial decisions do support EPA’s position that ESA consultation is not necessary where the agency action does not itself compel species-affecting action.  Yet, given that the environmental community supports EPA’s proposed rule, I doubt that the agency will be challenged on this point.

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