North Dakota Argues Carbon Capture Not Demonstrated

By Andrew Childers

Nov. 30 — North Dakota plans to challenge the Environmental Protection Agency determination that carbon capture is a readily available pollution control for power plants as part of its lawsuit challenging the new source performance standards for carbon dioxide (North Dakota v. EPA, D.C. Cir., No. 15-1381, statement of issues filed 11/27/15).

North Dakota will argue that the EPA carbon dioxide performance standards for new and modified power plants (RIN 2060-AQ91) violate the requirements of Section 111(b) of the Clean Air Act because they are “based on a technology or technologies that have not been adequately demonstrated and are not achievable,” according to a statement of issues filed Nov. 27 in the U.S. Court of Appeals for the District of Columbia Circuit.

The EPA rule sets a carbon dioxide emissions limit of 1,400 pounds per megawatt-hour for new coal-fired power plants, which would effectively require the use of partial carbon capture systems to comply.

North Dakota will argue that the EPA abused its discretion when it determined that demonstrating the individual components of a carbon capture system was adequate to determine that the entire process is readily available as a form of pollution control.

According to the statement of issues, North Dakota also plans to argue that the EPA performance standards violate the Energy Policy Act of 2005, which bars the EPA from setting standards that require carbon capture based “solely” on projects funded by the Energy Department. That would include projects such as the Southern Co. Kemper County Energy Facility in Mississippi, which was cited by the EPA as an example of a functioning carbon capture project when it proposed the performance standards.

The EPA repeatedly has defended its decision to require some form of carbon capture for new coal-fired power plants, arguing the required components are readily available and meet the Clean Air Act definition of adequately demonstrated (38 DEN A-3, 2/26/15).

North Dakota was the first to file a lawsuit challenging the EPA performance standards, though additional challenges were brought by Murray Energy Corp. and the Energy & Environmental Legal Institute (211 DEN A-4, 11/2/15).

The EPA issued its performance standards at the same time as it promulgated similar carbon dioxide emissions limits for existing power plants, known as the Clean Power Plan (RIN 2060-AR33), under Section 111(d) of the Clean Air Act. The standards for new and modified power plants are a legal prerequisite for the EPA to regulate carbon dioxide from existing units, the single largest sources of emissions. While a majority of states and several industry groups also have filed challenges to the Clean Power Plan, overturning the new source performance standards would effectively eliminate the Clean Power Plan as well.

To contact the reporter on this story: Andrew Childers in Washington at

To contact the editor responsible for this story: Larry Pearl at

For More Information 
The North Dakota statement of issues is available at