Tuesday, August 21, 2012
Two recent, unrelated developments highlight the continuing centrality of coal to our society. In Germany, the government has permitted the construction of a new coal power plant. The reason? Germany's decision to shut down its nuclear power plants post-Fukushuma means other energy sources have to be provided. The implication of this decision is that Europe's emissions are predicted to increase in the next few years. The report can be found here.
In the meantime, the D.C. Circuit has struck down an EPA Transport Rule to reduce emissions from coal power plants with the objective of limiting cross-border pollution from sulfur dioxide and nitrogen oxides [the Cross State Air Pollution Rule]. In EME Homer City Generation, L.P., v. EPA, petitioners successfully argued that EPA had exceeded its authority in regulating emissions from power plants. The D.C. Circuit found that EPA erred in not allowing states the opportunity to plan their emissions reduction, but instead subjecting them to the Federal Implementation Plan (FIPs). It also held that upwind states could not be required to reduce their emission beyond what was their "significant contribution" to the non-attainment of air standards by downwind states.
I have not had a chance to study the decision closely and will not comment on the decision. However, these two developments do highlight, perhaps for entirely different reasons, the importance of coal and the challenges to regulating emissions (even though not CO2 emissions here) from coal-power plants. The question is whether coal emissions can be managed effectively within the framework of climate law. There is much at stake and perhaps, what the we need is a new plan, a new solution. The question, of course, is cliched--who will bell the cat?