Environmental -- active

North Dakota v. EPA   (D.C. Circuit)

Challenge to the EPA's New Source Performance Standards (NSPS) for greenhouse gases from electric utilities

The Environmental Protection Agency issued a set of regulations in October 2015, governing greenhouse gas emissions from electric power plants. One covered existing units, and is the subject of separate litigation here. The other sets carbon pollution standards for new, modified and reconstructed power plants.

On December 18, the NAM and other associations in our coalition filed a petition for review in a federal appeals court. Our case was consolidated into 13 cases previously filed by North Dakota and other states and petitioners.

We are concerned that the EPA's new rules will eliminate coal-fired power plants from the mix of energy sources available to manufacturers, raising costs and threatening the reliability of the electric grid. As consumers of one-third of our nation's energy, manufacturers are put at a competitive disadvantage by this regulation.

The NAM and a variety of other industry groups, power companies and unions filed our main brief on the merits on Oct. 13, 2016. In our brief, we argue that the EPA exceeded its authority by determining that the best system of emission reduction for new coal-fired power plants is to require carbon capture and storage in deep underground saline formations. This process will require pipelines and the construction of deep new wells at locations with suitable geologic formations, involving costly and energy-intensive work. The EPA cannot establish that such formations are available throughout the country.

We also said that the EPA has not met the requirement that it show that the new emissions standard is achievable, because the technology required to achieve it is not demonstrated or available for full-scale application on a widespread scale. Instead, the regulation is based on Department of Energy engineering estimates of a hypothetical power plant.

The EPA’s analysis of the best system of emission reduction for modified and reconstructed steam generating units was minimal, and insufficient to satisfy the statutory requirements for imposing new regulatory requirements. It admitted that it did not have information regarding design factors and operation and maintenance practices that must form the basis for determining that a performance standard is achievable.

On March 28, 2017, the EPA moved to hold this case in abeyance pending EPA's review of the rule pursuant to an Executive Order from President Trump. Our coalition filed a brief in support, and on March 28, the court agreed. Status reports will be filed every 30 days, and the court ordered supplemental briefing by May 15 on whether the case should be remanded to the EPA rather than held in abeyance.

Related Documents:
Brief on the merits  (October 13, 2016)
Preliminary statement of issues  (January 25, 2016)


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