Debate Emerges Over Impact Of EPA Permit Decisions On GHG Standards

摘要

As EPA prepares to issue its greenhouse gas (GHG) rules for power plants, a debate is emerging over whether the agency's decisions imposing few GHG limits when conducting best available control technology (BACT) analyses for permits could constrain the mandates the agency can impose in its upcoming new source performance standards (NSPS). "EPA has sort of boxed itself in by agreeing with all of these BACT determinations for new and existing coal plants before coming out with an NSPS," says Brian Potts, an attorney at Foley & Lardner LLP who wrote an Aug. 22 paper on the issue for the Yale Journal on Regulation. Relevant documents are available on InsideEPA.com. See page 2 for details. (Doc ID: 2445583) He says that if the agency does develop a NSPS that is stricter than the BACT determinations, then industry is likely to argue that EPA is acting unlawfully as part of an expected legal challenge to the rules. "Courts haven't answered the question of whether NSPS can be more stringent than recent BACT' determinations, Potts notes, adding that the air act says that BACT must be more stringent than the NSPS.