Will Kentucky Fall Victim to the EPA’s War on Coal? Examining the Commonwealth’s Options Under the Newest Power Plant Emission Standards

Note | 103 KY. L. J. ONLINE 6 | Apr. 28, 2015

Matthew Hlinka[1]


Coal continues to play an integral part in the development of modern society. Coal keeps our families warm, fuels our trains, and provides electricity for our homes, factories, and cities.[2] The United States is currently the second largest consumer of electricity in the world.[3] In order to satisfy this veracious demand for energy, the United States has long relied on its extensive coal reserves, the largest in the world.[4] In fact, approximately half of the electricity generated in the United States over the last fifty years has come from coal.[5]

[Coal’s benefits, however, are accompanied by several serious drawbacks. For instance, the list of undesirable pollutants released by the burning of coal includes mercury, sulfur dioxide, particulate matter, and carbon dioxide.[6] Balancing these issues has been a constant challenge for the industry.

The most recent attempt to balance came from the Environmental Protection Agency (EPA), who at the urging of President Barrack Obama, published its two newest proposed regulations for power plant emissions in 2014.[7] These regulations would cap the emissions of carbon dioxide for new coal-fired power plants at 1,100 pounds per megawatt-hour (MW-h),[8] while also reducing the emissions from existing plants by 30% by 2030.[9] Observers speculate that these new emission standards will be so stringent as to render new coal-fired power plants financially impractical to build.[10]

Additionally, these new regulations will have a profound impact on the coal industry in Kentucky. A nationwide decrease in demand for coal will directly harm an industry that employs thousands of people. Without the cheap energy that Kentucky residents currently enjoy from coal, it will be difficult to attract new manufacturing employers, indirectly curtailing the economic prosperity of hundreds of thousands of Kentuckians. This is a serious problem because Kentucky’s coal producing counties are already financially depressed.[11] Severe restraints on the coal industry could cripple those areas beyond repair.

This note seeks to address the issues caused by the new regulations. Section I of this Note analyzes the history of the Clean Air Act and the EPA’s proposed regulations for new and existing emission sources. Section II examines Kentucky’s political, legal, and technological options in dealing with these regulations in both the short and long term. Section III argues that Kentucky must fight the standards through a combined approach of using both legal and political channels in order to buy the state additional time for researching and implementing new technologies.

I. Background

A. History of the Clean Air Act

In response to growing concerns over poor air quality in industrial areas, Congress passed the Clean Air Act of 1963, the first federal legislation concerning air pollution control.[12] This version of the Act provided funding for air pollution research and cleanup but did not set up a federal regulating authority.[13] Seeking more federal oversight, Congress passed a much stronger version in 1970 creating the EPA and giving it the primary authority in carrying out the Clean Air Act.[14]

The 1970 amendments to the Clean Air Act required the EPA to identify air pollutants, determine air pollution criteria, and issue air pollution goals to the states.[15] The EPA must also issue recommended techniques for the states to meet those goals.[16] After receiving the EPA’s national recommendations, each state is required to create and adopt a plan to meet the EPA’s standards by certain statutory deadlines.[17]

One exception to this national-state arrangement is that the EPA was required to create federal standards to regulate “new sources.”[18] The statute defines new sources as “any stationary source, the construction or modification of which is commenced after the publication of regulations.”[19] In addition to dividing up the regulatory power over stationary sources among federal and state governments, this exception effectively creates newer, stricter requirements for new plants while allowing existing sources to remain “grandfathered in” and subject to less restrictive standards.[20] In doing so, Congress recognized that it is cheaper to incorporate new technology into the design and construction of new units than to squeeze more efficiency out of existing units. Additionally, industrial facilities do not last forever. As units become obsolete and are replaced, new units will automatically increase in efficiency as they meet the new standards.

However, when the grandfathering policy was created, Congress was operating under an erroneous assumption that coal-fired power plants would have a usable life of only thirty years.[21] Yet as statistics show, 74% of coal power plants in existence in 2012 were already more than thirty years old.[22] Some states and environmental groups have criticized the grandfathering policy, arguing that it encourages owners of older, obsolete plants to continue their plants’ operation well beyond their normal lifetimes in order to avoid meeting the stricter requirements.[23]

As the pollution standards for coal plants become more and more restrictive, it becomes even less enticing for owners to shut down existing plants and sink large amounts of capital into new, expensive power plants that must meet the New Source benchmarks. This stubborn refusal to submit to the plant turnover once thought to be inevitable has kept the New Source regulations from being as effective as many had hoped. With environmental issues like air pollution and global climate change receiving increased attention from the public, lawmakers have been forced to balance the advantages of having access to an economical, abundant energy source independent of foreign government’s control against coal’s environmental drawbacks.

B. President Obama’s Climate Action Plan

In 2013, President Obama’s announced his Climate Action Plan.[24] One of the goals of the Climate Action plan was to reduce power plant pollution.[25] Power plants account for roughly one-third of all greenhouse gas emissions in the United States, the largest source of emissions in the country.[26]

In line with the president’s directive, the EPA proposed new carbon pollution standards for new power plants under 42 U.S.C. § 7411(b) on September 20, 2013.[27] Existing coal-fired power plants currently emit, on average, 1768 pounds of carbon dioxide per MW-h.[28] Under these proposed rules, large natural gas-fired turbines must emit less than 1,000 pounds of carbon dioxide per MW-h, while new, small natural gas-fired turbines must emit less than 1,100 pounds of carbon dioxide per MW-h.[29] New coal-fired units must emit less than 1,100 pounds of carbon dioxide per MW-h or, to provide plants the flexibility and time to optimize technologies, between 1,000 and 1,050 pounds of carbon dioxide per MW-h on average over eighty-four months of operation.[30] If met, these new standards would constitute a massive improvement over current pollution levels.

However, critics question whether it is possible to meet these standards with existing coal technology.[31] In order to reach these New Source requirements, utilities would most likely have to utilize carbon capture and sequestration technology, a process in which a portion of the carbon dioxide emitted is captured and stored underground in deep-lying geological layers.[32] Under the right temperature and pressure, the carbon dioxide is maintained in the liquid phase and can be isolated from the Earth’s atmosphere for an extend period of time.[33] Nonetheless, carbon capture technology has not yet advanced to the point where it is commercially feasible and development of this technology has slowed in recent years.[34] Many advocates for coal believe this attempt by Congress to force new plants to use technology that is not feasible is designed to halt new coal plant construction altogether.[35]

On June 2, 2014, the EPA unveiled the Clean Power Plan, a proposed regulation intended to cut nationwide carbon emissions by existing power plants 30% by 2030.[36] Rather than achieve this goal through a uniform standard, the EPA issued state-specific targets allowing each state considerable flexibility in determining how they will reach this objective.[37] States that rely significantly on coal, such as Kentucky, are not required to reduce their emission rates as much as the other states. For example, Kentucky would need to reduce its carbon emissions from 2,158 pounds of carbon dioxide per MW-h in 2012 to 1,763 pounds per MW-h in 2030, a decrease of approximately 18%.[38] This goal may not be as difficult to reach as many have feared. State officials estimate that Kentucky has already decreased its emissions to 1,951 pounds per MW-h in 2014, which would put Kentucky slightly more than halfway to meeting its target.[39]

II. Kentucky’s Options

With poverty levels in coal country already at high levels,[40] changes in the coal industry regulations may be overwhelming. Kentucky does, however, have a few options. Kentucky’s first option is to fight, through the political and legal systems, to keep the regulatory standards from being adopted. If the largest coal-producing states can get the proposed regulations weakened or delay the propagation of the regulations until a more coal-friendly administration is in place, the damage could be mitigated. The second option is to focus on researching cleaner energy sources. This includes examining alternative energy sources and searching for technological breakthroughs that would allow coal-fired power plants to meet the EPA standards while remaining economically feasible. Regardless of the choice, Kentucky must act quickly to position itself for long-term success.

A. Fighting the Standards Through the Adequate Technology Requirement

If Kentucky chooses to fight the EPA’s standards, they can make a strong argument that existing technology is not adequate to reach the proposed limits. Under the Clean Air Act, the EPA is required to impose regulations that are achievable based on current technology.[41] If the Administrator does not believe that the standards can be reached with technology that has been “adequately demonstrated,” she can promulgate an alternative that has been adequately demonstrated to be both economically and technically feasible.[42]

In the proposed regulation published in January 2014, the EPA references a state-of-the-art coal power plant being built in Kemper County, Mississippi to support the feasibility of carbon capture and sequestration technology.[43] This reference is not without flaws. Although the Kemper County plant is scheduled to begin operations later this year, construction has been repeatedly delayed and the project is already projected to be $2 billion over budget.[44] One could make a strong argument that a plant that is not even generating electricity yet cannot adequately demonstrate the technology. Additionally, even if the plant is able to perform as planned, that does not demonstrate that the technology is feasible nationwide, as the Kemper County plant has certain advantages that other locations may not enjoy, such as a local oil field that can be used for storing the captured carbon.[45]

There is evidence that even some internal factions of the EPA feel the agency is going too far. In November 2013, shortly after the proposed standards for existing power plants were released, the EPA’s Science Advisory Board (SAB), whose principle mission is to advise the EPA on scientific and technical matters,[46]released a memorandum discussing the proposal.[47] In that memorandum, the SAB challenges the adequacy of the EPA’s research on the matter calling the studies relied on by the EPA “inadequate” and stating that the “scientific and technical basis for carbon storage provisions is new science and the rulemaking would benefit from additional review.”[48]

Interestingly enough, the SAB reversed course on this recommendation two months later in a subsequent memorandum.[49] Citing a fact-finding teleconference, the SAB recommended that it should not review the scientific basis for the proposed rule because the rule does not explicitly require carbon capture and sequestration technology and allows for utilities to reach the standards through other means, if they can.[50] This statement is baseless. In the published proposed standards themselves, the EPA discusses three ways for coal-fired power plants to meet the requirements.[51] Two of these alternatives involve carbon capture and sequestration, and the third involves super-critical or ultra-critical boilers or Integrated Gasification Combined Cycle units.[52] Moreover, the EPA essentially writes off this last option a few sentences later because “they do not provide meaningful reductions in CO2 emissions.”[53] By stating this, the EPA is essentially saying that it has no idea how power plants are going to meet these new standards and little desire to find out. Thus, a strong case can be made that the EPA is failing to meet the Clean Air Act’s “current technology” requirement.

B. Federal Authority to Regulate Existing Sources

Kentucky can also argue that the federal government does not have the power to directly regulate existing power plants under the Clean Air Act. The Clean Air Act only authorizes the EPA to promulgate standards for new emission sources.[54] While the Clean Air Act does allow the EPA to require states to issue standards for existing power plants, the EPA is only allowed to guide states procedurally in the endeavor, such as requiring states to apply the factors under 42 U.S.C. § 7411(a)(1).[55] Furthermore, § 7411(d) does not give the EPA the authority to reject a state plan that contains a standard of performance as defined by the statute.[56] States have the ultimate authority to define the substantive standards.

Although the June 2014 Clean Power Plan gives more deference to the states than most anticipated, the EPA may have still overstepped its bounds under the Clean Air Act. An argument can be made that its actions violate public policy and the principles of cooperative federalism clearly defined by § 7411(d). Intuitively, the states are generally in a better position to determine the feasibility of any proposed changes and can more accurately measure how those changes will affect local communities.

The EPA’s failure to follow the Clean Air Act’s requirements for issuing standards based on existing technology and allowing states to promulgate regulations for existing emission sources can be challenged in court. A lawsuit can be expected whenever a more concrete proposal is in place. In fact, the attorneys general of seventeen states, including Kentucky, submitted a letter to the EPA in September of 2013 detailing their concerns with the EPA’s actions.[57] This letter contends that the “EPA, if left unchecked, will continue to implement regulations which far exceed its statutory authority to the detriment of the states, in whom Congress has vested authority under the Clean Air Act, and whose citizenry and industries will ultimately pay the price of these costly and ineffective regulations.”[58] This letter is clearly an announcement that the states will challenge the EPA’s authority.

Locally, United States Senator Mitch McConnell (R-Ky.) has already taken steps to challenge the EPA standards. After the EPA published its rule for new power plants in January, 2014, McConnell announced his plans to force a vote to stop the regulations.[59] McConnell aims to stop the regulations through the Congressional Review Act, which allows Congress to review new federal regulations issued by agencies and overrule them through a joint regulation.[60] Although the Review Act can usually only be applied to final rules, McConnell argues that the mere publication of the new rules are enough to immediately impact any plans for the construction of new power plants and, therefore, the Review Act can be utilized now.[61]

Regardless of the outcome of these attempts to impede the EPA’s regulations, it is encouraging to see Kentucky’s leaders at the forefront of the effort. At the very least, these efforts at slowing down the rulemaking process buys the state time. Considering the large differences in policy between the Bush administration and the Obama administration in regards to coal, Kentucky’s solution may be as simple as stalling until the 2016 presidential election in hopes that a more coal-friendly candidate is elected. Alternatively, if the states succeed in their argument that the EPA does not have the authority to regulate existing power plants under the Clean Air Act, the states can procrastinate issuing their own standards in hopes that either a technological breakthrough is made or the EPA decides to soften their stance on coal. For these reasons, Kentucky’s current plan of action appears to be a step in the right direction for the short term. However, with the current political focus on global climate change, stricter emission standards are inevitable. To best position itself for the future, Kentucky needs to investigate both technological improvements in clean-coal usage and alternative energy sources.

III. Kentucky’s Best Approach

As the EPA finalizes its carbon regulations for existing and new emission sources, Kentucky must be proactive in seeking solutions to Kentucky’s future energy issues. Although fighting the proposed standards in court and through the political and rulemaking processes is a short-term strategy that should be pursued in order to buy the state time, it has become abundantly clear that large emitters of greenhouse gases are becoming less and less politically acceptable. It is only a matter of time before existing coal technology is no longer feasible in this country. Kentucky needs to prepare itself for that day.

Kentucky’s immediate short-term strategy should be to fight the standards in court. There are at least two main arguments that can be used to attack the EPA’s actions. The first is the “adequately demonstrated” technology requirement. As it currently stands, carbon capture and sequestration is the only way that coal plants can meet these emissions standards, but that technology is not yet feasible and may not be for decades.[62] The EPA is presenting the Kemper County plant as a model of carbon capture and sequestration technology, but that project is extremely over budget, still under construction, and that technology may not even be compatible with Kentucky’s natural geographical and geological characteristics.[63] Thus, Kentucky should argue that the EPA must be forced to follow the statutory requirements of § 7411 so that Kentucky has a fighting chance to succeed.

Kentucky’s second legal option is to attack the EPA’s attempts to directly regulate existing sources because this power belongs to the states. Although this argument will not help Kentucky deal with the New Sources requirements that have already been published, attempting to retrofit existing coal plants or being forced to shut down non-compliant plants altogether may be catastrophically expensive and burdensome. The EPA must be forced to operate within the limits of its statutory authority.

Regardless of whether coal remains a feasible source of electricity, Kentucky needs to start moving towards alternative energy sources. If the EPA’s standards are successful, this shift will be out of necessity, but even if the EPA’s standards are not allowed in their current form this time around, it certainly appears that it is only a matter of time before a major crackdown on carbon emissions is promulgated. Considering the political climate, it is too risky to continue depending on coal for over 90% of the state’s electricity.

IV. Conclusion

This Note has explored the effect that the EPA’s proposed New Source emission requirements, and its forthcoming existing source emission requirements, will have on Kentucky. These standards have the potential to devastate Kentucky’s coal mining industry and the affordable electricity rates Kentuckians currently enjoy.

This Note proposes that Kentucky’s leadership continue to fight the EPA’s standards politically and legally. It is in Kentucky’s best interests to do everything possible to keep the standard from being adopted or, at the very least, delay their implementation for as long as possible in order to give the state more time to prepare. This Note advocates for Kentucky’s vigilance in seeking out viable alternative energy sources. It is unwise to be so heavily reliant on coal in this current political climate and Kentucky must work to reduce this dependence. Natural gas is the most attractive option in the short term, but it may be only a matter of time before carbon emission standards strangle that option as well. Kentucky would be wise to maintain a diverse energy portfolio, fully examining the local feasibility of nuclear, biomass, and solar energy resource.

[1] University of Kentucky College of Law, J.D. May 2015.

[2] Roberta Mann, Another Day Older and Deeper in Debt: How Tax Incentives Encourage Burning Coal and the Consequences for Global Warming, 20 Pac. McGeorge Global Bus. & Dev. L.J. 111, 111 (2007).

[3] The United States ranks second only to China. CIA, The World Factbook: Country Comparison: Electricity – Consumption, CIA, https://www.cia.gov/library/publications/the-world-factbook/rankorder/22… (last visited April 14, 2015).

[4] See Coal Proved Reserves by end of 2011, Europe’s Energy Portal, http://www.energy.eu/stats/energy-coal-proved-reserves-total.html (last visited April 14, 2015).

[5] Approximately 46% of all electricity nationwide in 1970 was generated from coal. See U.S. Energy Info. Admin., Monthly Energy Review: Electricity Net Generation, (March 2015), available at http://www.eia.gov/totalenergy/data/monthly/pdf/sec7_5.pdf. This number rose to 57% in 1985, and 52% in 2000. Id.

[6] Patricia Glick, The Toll from Coal: Power Plants, Emissions, Wildlife, and Human Health, 21 Bull. of Sci., Tech. & Soc’y 482, 482 (2001); Thomas O. McGarity, When Strong Enforcement Works Better Than Weak Regulation: The EPA/DOJ New Source Review Enforcement Initiative, 72 Md. L. Rev. 1204, 1209–10 (2013).

[7] See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34, 830 (June 18, 2014) (to be codified at 40 C.F.R. pt. 60); Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430 (Jan. 8, 2014) (to be codified at 40 C.F.R. pt. 60).

[8] Standards of Performance, 79 Fed. Reg. at 1448.

[9] Press Release, EPA, EPA Proposes First Guidelines to Cut Carbon Pollution from Existing Power Plants (June 2, 2014), available at http://yosemite.epa.gov/opa/admpress.nsf/bd4379a92ceceeac8525735900400c2….

[10] Keith Johnson & Tennille Tracy, EPA Plan to Curb New Coal-Fired Power Plants, Wall St. J. (Sept. 11, 2013, 9:00 PM), http://online.wsj.com/article/SB1000142412788732386460457906955091602126….

[11] Office of Press Secretary, Fact Sheet, The White House (Jan. 8, 2014), https://www.whitehouse.gov/the-press-office/2014/01/08/fact-sheet-presid….

[12] EPA, Understanding the Clean Air Act, EPA.gov, http://www.epa.gov/airquality/peg_caa/understand.html (last updated Oct. 28, 2014).

[13] Id.

[14] Id.

[15] 42 U.S.C. § 7408 (2013).

[16] Id.

[17] Id. § 7410 (2013).

[18] Id. § 7411(b) (2013).

[19] Id. § 7411(a)(2).

[20] Jonathan R. Nash & Richard L. Revesz, Grandfathering and Environmental Regulation: The Law and Economics of New Source Review, 101 Nw. U. L. Rev. 1677, 1678 (2007).

[21] Shi-Ling Hsu, Reducing Emissions from the Electricity Generation Industry: Can We Finally Do It?, 14 Tul. Envtl. L.J. 427, 435 (2001).

[22] Todd Woody, Hitting the Gas: Most coal-fired power plants in the US are nearing retirement age, Quartz (Mar. 12, 2013), http://qz.com/61423.

[23] Nash & Revesz, supra note 20, at 1678.

[24] Executive Office of the President, The President’s Climate Action Plan (2013), available at http://www.whitehouse.gov/sites/default/files/image/president27sclimatea….

[25] Id. at 6.

[26] Id.

[27] Jeff Postelwait, Gina McCarthy Introduces EPA’s Revised Rules for New Power Plants, Electric Lights & Power (Sept. 20, 2013), http://www.elp.com/articles/2013/09/gina-mccarthy-introduces-epa-s-revis…].

[28] Id.

[29] Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430, 1446 (Jan. 8, 2014) (to be codified at 40 C.F.R. pt. 60).

[30] Id. at 1448.

[31] See Joanna M. Foster, EPA Publishes First Rule Limiting Carbon Pollution From New Power Plants, Think Progress (Jan. 9, 2014, 12:48 PM), http://thinkprogress.org/climate/2014/01/09/3139921/epa-carbon-rule-powe….

[32] Id. The three main types of geological formations that are being considered for carbon sequestration include: oil and gas reserves, deep saline reservoirs, and unmineable coal seams. Peter Folger, Cong. Research Serv., Carbon Capture and Sequestration (CCS): A Primer 4 (2013), available at https://www.fas.org/sgp/crs/misc/R42532.pdf. It is also theoretically possible to store large amounts of carbon deep beneath the ocean’s surface. Id. at 13. Deep ocean sequestration involves injecting the captured carbon dioxide at depths around 3000 meters. Id. At these depths, carbon dioxide is a liquid denser than seawater, so the injected carbon dioxide would remain at the bottom. Id. However, there are a number of environmental concerns associated with deep ocean sequestration because large-scale implementation could cause the ocean to become more acidic. Id. at 14.

[33] In Clean Coal We Trust – or Do We?, ParisTech Rev. (Oct. 15, 2013), http://www.paristechreview.com/2013/10/15/clean-coal-trust.

[34] Matthew L. Wald, Despite Climate Concern, Global Study Finds Fewer Carbon Capture Projects, N.Y. Times (Oct. 10, 2013), http://www.nytimes.com/2013/10/11/science/earth/study-finds-setbacks-in-….

[35] Foster, supra note 31.

[36] The 30% reduction is from 2005 levels. Using 2005 as the baseline is beneficial for carbon emitters, as the EPA’s proposal is actually only a 17% decrease from 2012 levels. David Doniger & Derek Murrow, The Clean Power Plan: NRDC’s Initial Analysis of EPA’s Landmark Proposal to Curb Carbon Pollution from the Nation’s Power Plants, Switchboard (June 7, 2014), http://switchboard.nrdc.org/blogs/ddoniger/the_clean_power_plan_nrdcs_in….

[37] Press Release, EPA, supra note 9.

[38] James Bruggers, Kentucky, Indiana Get Head Start on Global Warming Regs, Courier J. (June 13, 2014, 4:55 AM), http://www.courier-journal.com/story/tech/science/environment/2014/06/12…. Some environmentalists had been pushing for a 45% decrease in Kentucky’s carbon dioxide emission rate. Id. Other states face much larger reductions. Washington state, for example, has been called upon to reduce reductions by 84% by 2030. Coral Davenport & Peter Baker, Taking Page From Health Care Act, Obama Climate Plan Relies on States, N.Y. Times (June 2, 2014), http://www.nytimes.com/2014/06/03/us/politics/obama-epa-rule-coal-carbon….

[39] Bruggars, supra note 38.

[40] Annie Lowrey, What’s the Matter with Eastern Kentucky?, N.Y. Times Mag. (June 26, 2014), http://www.nytimes.com/2014/06/29/magazine/whats-the-matter-with-eastern….

[41] See 42 U.S.C. § 7411(h) (2013).

[42] Id.

[43] Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430, 1435 (Jan. 8, 2014) (to be codified at 40 C.F.R. pt. 60).

[44] Reality vs. EPA’s Carbon Capture Dreams, Inst. for Energy Research (Jan. 8, 2014), http://www.instituteforenergyresearch.org/2014/01/08/reality-vs-epas-car….

[45] Southern Cautions on Kemper Coal Unit as EPA Carbon Model, Reuters (Sept. 20, 2013, 5:01 PM), http://www.reuters.com/article/2013/09/20/us-usa-energy-emissions-kemper….

[46] EPA Science Advisory Board (SAB), EPA.gov, http://yosemite.epa.gov/sab/sabpeople.nsf/webcommittees/BOARD (last visited Aug. 21, 2014).

[47] Memorandum from James R. Mihelcic, Chair, SAB Work Group on EPA Planned Actions for SAB Consideration of the Underlying Science, (Nov. 12, 2013), available at http://yosemite.epa.gov/sab/sabproduct.nsf/18B19D36D88DDA1685257C220067A…$File/SAB+Wk+GRP+Memo+Spring+2013+Reg+Rev+131213.pdf.

[48] Id. at 3.

[49] See Memorandum from James R. Mihelcic, Chair, SAB Work Group on EPA Planned Actions for SAB Consideration of the Underlying Science (Jan. 7, 2014), available at http://yosemite.epa.gov/sab/sabproduct.nsf/F43D89070E89893485257C5A007AF…$File/SAB+work+grp+memo+w+attach+20140107.pdf.

[50] Id. at 2–3.

[51] Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430, 1435 (Jan. 8, 2014) (to be codified at 40 C.F.R. pt. 60).

[52] Id.

[53] Id.

[54] 42 U.S.C. § 7411(b) (2013).

[55] Id. § 7411(d). One of the main reasons that Congress made this distinction between new and existing sources was to protect states that were ahead of the curve in enacting stringent pollution controls. See H.R. Rep. No. 95-294, at 184 (1977), reprinted in U.S.C.C.A.N. 1079, 1263. Congress was concerned that industries would avoid the states with stricter standards and primarily build new plants in states that are more lenient or take longer to implement new standards. Id. By giving the EPA the authority to enact uniform national standards for new plants, this concern was significantly mitigated. See id. However, because industry has fewer incentives to leave a state where a plant has already been constructed, and in some cases fully capitalized, the states retained the power to regulate existing sources. See id.

[56] Id. § 7411(d).

[57] Letter from Jon Bruning, Attorney Gen., Neb., to Gina McCarthy, Adm’r, EPA 1, 12 (Sept. 11, 2013), available at http://energycommerce.house.gov/sites/republicans.energycommerce.house.g….

[58] Id. at 1.

[59] Laura Barron-Lopez, McConnell to Force Vote on EPA Carbon Regs, The Hill (Jan. 16, 2014, 11:19 AM), http://thehill.com/blogs/e2-wire/e2-wire/195669-mcconnell-to-push-vote-b….

[60] Id.

[61] Id.

[62] See Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430, 1435 (Jan. 8, 2014) (to be codified at 40 C.F.R. pt. 60); Southern Cautions on Kemper Coal Unit as EPA Carbon Model, supra note 45.

[63] Reality vs. EPA’s Carbon Capture Dreams, supra note 44; Southern Cautions on Kemper Coal Unit as EPA Carbon Model, supra note 45.