State and Federal Command-and-Control Regulation of Emissions from Fossil-Fuel Electric Power Generating Plants
Reitze, Arnold W., Jr., Environmental Law
In 2001, the public was fed a steady diet of news stories concerning electrical energy shortages and escalating prices. California received the most attention after experiencing power blackouts, rationing, and staggering increases in annual electric power costs. (1) Some industry interests attempted to use the perception of electricity shortages to reduce the stringency of environmental laws. This effort could have been buttressed by the report of the President's National Energy Policy Group (NEPG), headed by Vice President Dick Cheney. (2) The group made at least fourteen recommendations that could impact environmental laws applicable to the fossil-fuel electric power industry. (3) However, shortly after the report was issued, Senator James Jeffords (I-Vt) left the Republican Party, which thereby lost control of the Senate. (4) The administration's ability to implement a change in energy or environmental policies was compromised by the split in the control of Congress and Senator Jeffords's position as the chair of the Senate Environment and Public Works Committee. (5) Nevertheless, environmental laws, especially the Clean Air Act (CAA), (6) will continue to be active battlegrounds because the imposed compliance costs can be an important component of the total cost of electric power. Since these costs are not necessarily imposed on the members of the electric power industry equally, their ability to compete in a deregulated market may be significantly affected by existing requirements and proposed changes to the air pollution control program.
This Article will examine the major CAA command-and-control provisions applicable to fossil-fuel electric power generators and will discuss the major initiatives designed to more stringently regulate this industry. It will not cover economic-based regulatory approaches involving emissions trading of sulfur dioxide (S[O.sub.2]) and nitrogen oxides (N[O.sub.x]), (7) and will provide only a brief discussion of global warming issues, which may result in carbon dioxide (C[Osub.2]) reduction requirements being imposed on electric power plants. (8)
II. BACKGROUND ON THE ELECTRIC POWER INDUSTRY
Environmental protection requirements imposed on fossil-fuel electric power generators by the United States Environmental Protection Agency (EPA) are subject to ongoing review because this is the industry most responsible for conventional air pollutant emissions and is a significant source category of hazardous air pollutants. Fossil fuels are used to generate about 68% of the electricity in the United States; coal is used to generate about 44% of the electricity. (9) In 1998, electric utilities emitted 67.2% of the nation's S[O.sub.2], 24.9% of N[O.sub.x], and about 10.6% of the small particulate (P[M.sub.10]) emissions,(l0) Moreover, sixty-seven hazardous air pollutants potentially are emitted from fossil-fueled electric power generating plants, and EPA predicts a 30% increase in these emissions by the year 2010. (11) In addition, about 40% of C[O.sub.2] from United States sources comes from electric power industry (utilities and nonutilities combined), (12) and domestic C[O.sub.2] emissions increased by 2.5% in 2000, which is a significant increase from the 1.3% average annual growth from 1990 to 2000. (13) The United States's emissions of C[O.sub.2] are responsible for an estimated 25% of the world's C[O.sub.2] emissions from fossil-fuel burning and cement manufacturing. (14) Moreover, increases in generating capacity are projected to increase C[O.sub.2] from the electricity sector by 14 to 38% by 2007 from the 1998 level. (15) In 1999, coal was used to generate 52.8% of the electricity generated in the United States; petroleum was used to produce 2.56%; and natural gas was used to produce 10.78% (16) The use of natural gas is projected to increase, coal use will increase more slowly, and petroleum use is expected to continue to decrease. …