[BoulderCouncilHotline] Public Comment in Opposition to Weakening the New Source Performance Standards

[Kalish, Debra]

On Tuesday, December 6, 2018, EPA issued a proposed rule to weaken the current carbon dioxide New Source Performance Standards for new, modified, and reconstructed fossil fuel-fired power plants (sometimes referred to as the 111(b) rule). The proposal will be published in the Federal Register soon. The proposal can be found here: https://www.epa.gov/stationary-sources-air-pollution/proposal-nsps-ghg-emissions-new-modified-and-reconstructed-egus<https://protect-us.mimecast.com/s/VyaLCERWLQH3GVMmsNk3VF?domain=epa.gov>

The California Attorney General's Office is taking the lead in drafting a multistate comment letter to EPA explaining why it should not weaken the existing standards and has invited Boulder, as a participant in the coalition opposing the repeal of the Clean Power Plan, to join the letter. The goal of submitting comments is to persuade EPA not to finalize the proposed rule; alternatively, the letter will ensure that grounds on which we may later base a court challenge are timely put before EPA. The 60-day comment period will likely close around February 14, 2019.

EPA issued the current standards for new, modified, and reconstructed power plants on October 23, 2015.  The standards apply to new power plants built after January 8, 2014, or to those modified or reconstructed after June 18, 2014. The rule was challenged in the D.C. Circuit and the case was fully briefed. But two weeks before the April 2017 oral argument, the Trump administration asked the Court to hold the case in abeyance. That litigation remains in abeyance, but unlike the Clean Power Plan, the current rule has never been stayed by any court and it has remained fully operative. EPA's new proposal would allow new, modified, and reconstructed fossil fuel-fired power plants to emit more carbon dioxide pollution than is allowed under existing law. While the current standard is based on new coal plants using Carbon Capture and Storage (CCS) to remove a portion of their emissions, EPA now proposes to reverse itself and find that it cannot base a standard on CCS because that technology is not "adequately demonstrated" under section 111.

Since the city has executed the common interest agreement concerning challenges to EPA's efforts to weaken the existing 111(b) rule, we will assume that council supports joining the comment letter unless we hear otherwise from you by the close of business next Friday, December 14, 2018.

Debra S. Kalish
Senior Counsel
Office of the City Attorney
City of Boulder
1777 Broadway, Second Floor
Boulder, Colorado  80302
303.441.3020 (main)
303.441.3092 (direct)
720.289.1327 (cell)
kalishd at bouldercolorado.gov<mailto:kalishd at bouldercolorado.gov>

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