Trump’s Clean Power Plan Rollback Is a Stealth Attack on a Separate—and Critical—Clean Air Act Program: New Source Review
By Andres Restrepo, Sierra Club
Since the Trump Administration proposed its rollback of the Clean Power Plan last week, many environmentalists and clean energy champions have rightfully been calling it the Dirty Power Plan. But it might be more appropriate to call it the Dirty Power Plans: it includes not just one, but three assaults on critical clean air protections. Of course, its primary goal is to gut the Clean Power Plan. In addition, Trump’s EPA (currently helmed by former coal lobbyist Andy Wheeler) is proposing to weaken two Clean Air Act programs: the program requiring pollution performance standards at existing sources, and the New Source Review program, which mandates that major new and modified facilities install modern pollution control technology. Apparently, Trump and Wheeler won’t rest until they’ve managed to fully enrich their pals in the fossil fuel industry by eroding every last clean air safeguard they can get their hands on.
This blog focuses on EPA’s proposed changes to the New Source Review program. Congress enacted New Source Review in 1977 on an overwhelming, bipartisan vote, concerned that the construction of new pollution sources could prevent states from meeting the nation’s air quality standards. To avoid this problem, New Source Review directs all new major pollution sources to obtain pre-construction permits requiring state-of-the-art pollution controls. As part of a “grand bargain” with industry, Congress exempted existing sources from these control technology requirements, but specified that any source undergoing a major modification—that is, a physical change that increases its capacity to pollute—would have to meet the same modern pollution control standards as new sources.
History has proven the New Source Review program, along with EPA’s air quality standards, to be a smashing success. Since 1980, the nation has seen carbon monoxide reduced by 84%, lead by 99%, nitrogen oxides by over 60%, ozone (the main ingredient in smog) by 32%, and sulfur dioxide by 90%. And just since 2000, concentrations of fine particulate matter—a technical term for soot—have diminished by over 40%. Moreover, these pollution reductions have occurred even as the country’s population has grown and its economy expanded, and despite the fact that total vehicle miles driven by Americans have more than doubled since 1980.
Now, the Trump Administration wants to weaken New Source Review by rewriting the terms of Congress’s carefully-crafted grand bargain. Under the direction of EPA’s Air Administrator Bill Wehrum, the agency proposes to create a new loophole that would allow existing power plants to make certain modifications that increase their pollution without having to install modern control technology. Under EPA’s current regulations, a plant that undergoes any modification that increases its annual emissions of harmful pollutants must satisfy New Source Review’s “best available control technology requirements.” Under the new proposal, a modified power plant would be exempt from New Source Review unless the modification increases both the plant’s annual andhourly capacities to pollute. To make matters worse, the vast majority of these existing plants currently emit more smog- and soot-forming pollution than would be permitted if they had to satisfy New Source Review’s control technology requirements.
So how might the Wheeler/Wehrum give-away work in practice? Suppose an existing coal plant has a component that hasn’t been upgraded in many years and is now wearing down. This aging component causes frequent shutdowns at the plant and limits how often it can operate (and thus pollute) in a given year. After replacing the component with new equipment, the plant can run much more frequently without shutting down. Although the plant’s hourly emissions are the same as before or slightly lower because of the new component, its overall annual pollution is greater, since the plant now operates much more often throughout the year. Under EPA’s existing rules, and as Congress intended, this plant would have to obtain a New Source Review permit mandating modern control technology. (Indeed, EPA and citizens have successfully sued plants in similar circumstances for not obtaining permits and installing modern, industry-standard pollution controls.) This requirement makes sense: after all, the plant is running more frequently and thus polluting more per year than it previously could. Under the Trump Administration’s approach, however, because the plant’s hourly emissions won’t also increase, it will get a free pass.
So how on Earth is EPA trying to justify this, and what does it have to do with the Clean Power Plan? In scrapping the Obama Administration’s landmark carbon reduction program, Wheeler and Wehrum are assuming that states will set new (and, as it happens, vastly weaker) performance standards for power plants based on efficiency improvements. Yet they claim that plant owners will consider a number of these improvements to be simply too expensive if they end up triggering New Source Review’s control technology requirements by increasing a plant’s ability to run more often and thus pollute more. Therefore, Wheeler and Wehrum propose to solve this supposed “dilemma” by creating a new carve-out for power plants that exempts them from New Source Review unless subsequent modifications increase their hourly and annual pollution capacities.
This logic is entirely backward for at least three reasons. First, the point of New Source Review is not to provide a path of least resistance for industry; rather, it’s to reduce air pollution that threatens our health and welfare by requiring aging and highly-emitting sources to install modern technology whenever they make major modifications, just as brand new sources must. Wehrum and Wheeler are taking a polluters-first, public-last approach, which is the opposite of how the law works.
Second, the only reason EPA’s supposed “dilemma” exists is because the Dirty Power Plan establishes no actual emission target. That’s right: the proposal literally sets no numerical limit for carbon pollution that states or polluting sources must satisfy. If EPA had set such an emission target—as it legally must under the Clean Air Act—state plans would have to meet that target, and power plants could not simply choose to “opt out” of efficiency improvements due to New Source Review-related costs. Unfortunately, under the Dirty Power Plan, states need not (and probably will not) require major efficiency upgrades at most sources.
And third, if a plant truly wanted to install major efficiency upgrades but avoid New Source Review’s control technology requirements, it already has a number of existing mechanisms for doing so. (For instance, the source could agree to a legally enforceable limit on its annual operating hours). The Wheeler/Wehrum proposal is simply unnecessary to address the alleged “problem” it identifies. Its real motive is to enable these old, inefficient plants to operate decades beyond their original life expectancy while still spewing vast amounts of deadly pollution for new generations to inhale.
Simply put, EPA’s attack on New Source Review is nothing more than another give-away from the Trump Administration to corporate polluters. More still, it’s unlawful: under the plain terms of the Clean Air Act, the New Source Review requirements apply to any source that undergoes a “physical change, or change in the method of operation, that increases the amount of any air pollutant emitted by such source.” Although Trump and his underlings might claim otherwise, facts are facts, and emission increases are emission increases. If a plant makes a physical change that results in more total pollution, New Source Review must apply. It’s as simple as that.
Indeed, in 2007, a parallel regulation instituted by the Bush Administration (and spearheaded by none other than Bill Wehrum himself) was rejected the D.C. Circuit as inconsistent with the Clean Air Act. In that instance, the Bush EPA unlawfully sought to exempt “pollution control projects” from triggering New Source Review. The Trump Administration’s proposal seeks to achieve the same end using an even flimsier excuse, and we fully expect it to meet the same fate in court. Until then, Sierra Club and its allies will strenuously work to see that this misbegotten proposal doesn’t see the light of day as a final regulation.