Closing the Gap: Using the Clean Air Act to Control Lifecycle Greenhouse Gas Emissions from Energy Facilities

Article excerpt

  I. INTRODUCTION

 II. BEHIND THE SCENES: LIFECYCLE ANALYSIS
     DEMONSTRATES THAT FOCUSING ON SMOKESTACK
     EMISSIONS IGNORES ADDITIONAL EMISSIONS
     A. Lifecycle Emissions from Coal
     B. Lifecycle Emissions from Natural Gas
     C. Lifecycle Emissions from Biomass
     D. Lifecycle Emissions from Nuclear and Non-emitting
        Renewables

III. EPA Authority to Require Lifecycle Analysis for
     Greenhouse Gas-emitting Energy Facilities
     A. Statutory Authority for Lifecycle Analysis in
        Section 211 of the Clean Air Act
     B. Lifecycle Analysis Under the Clean Air Act's
        PSD Regulations
     C. Using Biomass and Energy Efficiency as BACT
        Control Options Implicates Analysis of Offsite
        Emissions
     D. EPA May Regulate Lifecycle Emissions
        Through the Clean Air Act's New Source
        Performance Standards

 IV. CONTROLLING LIFECYCLE EMISSIONS FROM NON-EMITTING
     ENERGY RESOURCES

  V. CONCLUSION

I. INTRODUCTION

As the United States moves forward with regulations to address climate change and policies to achieve a low-carbon energy mix, regulators and utilities should undertake a full and accurate comparison of the greenhouse gas consequences of available energy resources. (1) Specifically, a lifecycle analysis (LCA) of greenhouse gas emissions that includes emissions at all stages of production will help determine the total climate impact of generating electricity with a particular resource. This accounting is necessary in order to ensure that national energy policy and utilities' decisions about energy resource options will reduce the United States' greenhouse gas emissions as much and as efficiently as possible.

As greenhouse gases become subject to regulation under the Clean Air Act, taking lifecycle emissions into account could help encourage innovation in reducing emissions associated with electricity generation. In 2008, several utilities, technology companies, and nonprofit environmental organizations recognized the benefit of this type of analysis. The coalition of businesses and the Environmental Defense Fund released a set of principles for regulating greenhouse gases in the wake of the United States Supreme Court's decision in Massachusetts v. EPA. (2) Although the coalition acknowledged "divergent views" on the Environmental Protection Agency's role in regulating greenhouse gases absent new legislation, (3) its members nevertheless agreed that "EPA's leadership in understanding and addressing the development of rigorous lifecycle analysis, the interactions among various pollutants, and the promise of emerging technologies will be invaluable." (4) As these businesses and environmental organizations suggest, "rigorous lifecycle analyses" are necessary in order to understand the full implications of our nation's greenhouse gas emissions and can help make reducing emissions more cost effective. (5)

Congress has already recognized the need for this type of analysis in a limited context. The Energy Independence and Security Act of 2007 (EISA) amended the Clean Air Act to require that some biofuels undergo lifecycle analysis to ensure that their use actually yields net emission reductions. (6) In addition, Congress explicitly prohibited the federal government from entering into long-term contracts for synthetic petroleum fuels with higher lifecycle greenhouse gas emissions than conventional petroleum. (7) In contrast, legislators and regulators have paid little attention to the lifecycle emissions from electricity generation.

This comment identifies a legal framework for reducing lifecycle emissions from electric power plants. First, this comment reviews the need for full lifecycle analysis and summarizes the results of attempts to quantify the full lifecycle impact of different energy resources. Second, this comment explores whether the Clean Air Act authorizes the United States Environmental Protection Agency (EPA), the agency chiefly responsible for implementing the nation's environmental laws, to require consideration of lifecycle analysis in Clean Air Act regulations for greenhouse gas-emitting power plants. …