New York, Environmental Groups to Delay Lawsuits to Force Action on Power Plants

Energy and Climate Report provides current, thorough coverage of clean energy, efficiency, and climate change legislation, regulation, policy, legal developments, and trends in the U.S. and...

By Jessica Coomes and Anthony Adragna.  


WASHINGTON, D.C.--New York and environmental groups told BNA June 17 they will not immediately sue the Environmental Protection Agency for missing a deadline to issue a final carbon dioxide performance standard for new fossil fuel-fired power plants, in light of reports that President Obama plans to take action in July to curb greenhouse gas emissions.

New York and three environmental groups--the Sierra Club, Natural Resources Defense Council, and Environmental Defense Fund--in mid-April sent EPA separate 60-day notices of intent to sue over the agency missing its statutory deadline for issuing the final rule (75 ECR, 4/18/13).

Although New York and the advocacy groups could begin filing their lawsuits in federal district court in mid-June, they said they do not intend to do so immediately.

“Due to public reports that the President will be announcing major action on climate change very soon, the Attorney General has decided to postpone a lawsuit on this matter for a short period of time,” Melissa Grace, a spokeswoman for New York Attorney General Eric Schneiderman, told BNA in a statement June 17.

Similarly, David Hawkins, director of climate programs for the Natural Resources Defense Council, told BNA in a statement June 17 that the group “has noted the recent reports that the President may have an announcement soon regarding some significant actions on climate. We want to see what the President announces before we decide what legal steps are appropriate.”

At closed-door fund-raisers during the past few weeks, the president has been telling Democratic Party donors that he will unveil climate proposals in July, according to people who have attended the events or been briefed. Final decisions about the specific policies included in the president's package are still being made, according to a person close to the White House.

One-Year Deadline

EPA proposed a new source performance standard of 1,000 pounds of carbon dioxide per megawatt-hour for all new fossil fuel-fired power plants April 13, 2012, and Clean Air Act Section 111 requires the agency to finalize the rule within one year (77 Fed. Reg. 22,392).

Unlike past performance standards, the proposed rule would require all new units to meet that standard regardless of fuel type. While EPA anticipates most new combined-cycle natural gas power plants would be able to meet the standard with no additional controls, it would require new coal-fired units to invest in expensive carbon capture systems. The rule is a priority for many states and environmental groups because finalizing it would trigger a Clean Air Act requirement to regulate emissions from existing power plants as well, the largest sources of greenhouse gas emissions.

In addition to New York, several other states and cities sent EPA a notice of intent to sue in April--Connecticut, Delaware, Maine, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, Washington, New York City, and Washington, D.C. It was not immediately clear June 17 whether all of the states and cities plan to join New York in putting the lawsuit on hold.

Agencies Developing Plans

Meanwhile, the Washington Post reported June 14 the White House had asked federal agencies including EPA, the Energy Department, and the Interior Department to develop plans for curbing greenhouse gas emissions and for helping communities adapt to the effects of global warming.

The agencies and the White House declined to comment on the report or did not respond to requests for comment June 17.

The Natural Resources Defense Council and the Sierra Club told BNA June 17 they have heard the president has been reaching out to federal agencies ahead of the expected July announcement.

“Administration officials have been indicating that the President will soon make an announcement on climate,” David Goldston, government affairs director for the Natural Resources Defense Council, told BNA in a statement. “If that's the case, then one would expect the White House to be reaching out to the relevant agencies to develop a plan.”

John Coequyt, climate policy director for the Sierra Club, said the top priority for the administration should be setting a carbon standard for new fossil fuel-fired power plants, and other priorities should include regulating methane emissions from natural gas infrastructure and releasing “overdue” energy efficiency standards.

“There are several very key authorities that the administration has not used yet that we are very much pushing them to implement,” Coequyt said. “Every major Cabinet level agency has a role to play.”

Announcement From President

Climate action is likely to come from the president himself, Coequyt said.

“We need presidential leadership,” he said. “The president has clearly put this on the radar. This stuff is not going to be hiding behind bureaucratic action when it's rolled out.”

During his State of the Union speech Feb. 12, Obama called on Congress to pass a greenhouse gas bill, but he vowed to take administrative action if no legislation were passed.

“But if Congress won't act soon to protect future generations, I will,” Obama said

Timing Uncertain

The timing of a potential announcement in July is uncertain in light of Gina McCarthy's pending nomination to be EPA administrator. Obama announced her nomination March 4, and a vote of the full Senate is not expected until at least July.

Howard Feldman, director of regulatory and scientific affairs for the American Petroleum Institute, told BNA June 17 that he does not expect the president to make an announcement until after the Senate votes on McCarthy's nomination.

“They don't want to do anything to jeopardize that nomination,” Feldman said. “They want to make sure that nomination goes forward before they do anything.”

However, Coequyt said the administration's climate announcement likely would happen regardless of the timing of McCarthy's vote.

“It seems that this is going to happen on a timeline that's independent of Gina's nomination,” he said.

Contributing to this report was Lisa Lerer