Smoke from Capitol Hill


“Smoke Gets in Your Eyes” is a great song but a lousy way to read the Clean Air Act.  The latest coal smoke from Congress is a letter from four House members claiming that a 2005 energy law blocks EPA from setting protective carbon pollution standards for coal power plants.  Blow away the smoke and it is clear they’ve got it all wrong.

In September, EPA proposed carbon pollution standards for new coal and gas power plants.  In the proposal EPA concluded that a decades-old industrial technology that captures carbon dioxide from smokestacks is ready to be used (“adequately demonstrated” is the term in the Clean Air Act) at new coal plants.  Not so fast, say the four House members: they argue that the Energy Policy Act of 2005 (EPACT) prevents EPA from setting standards based on carbon capture (CCS) because the government provided some funding for several CCS coal plant projects that are in the pipeline. 

How’s that for a rip-off?  These Congressmen say if a polluter takes your tax money to help pay for part of its clean-up equipment, that means you get to breathe more pollution from everyone else because, they say, EPA must ignore the results of any project that gets government money.   But before you march on Washington to protest this outrageous use of your hard-earned tax dollars, the good news is that Congress in this case actually did not do something as idiotic as these House members claim.

The 2005 EPACT says that EPA cannot determine that a technology is adequately demonstrated under the Clean Air Act, "solely" because the technology was used at one or more projects that have received some government funding.  What that means is that if the only evidence EPA has that a technology is viable comes from a project that has received government funding, EPA cannot set a standard based just on those projects.  Now you may think that even this provision is unfair to taxpayers; why shouldn't EPA be able to use results that American taxpayers have helped make happen?  But that constraint is not extreme enough for these four House members; they argue EPA cannot base a standard on CCS no matter how much other evidence EPA has.

Fortunately, they are flat wrong.  The law just does not say what they claim.  EPA's reference to some government-supported projects is in full compliance with the EPACT provision. 

EPA bases its conclusion that CCS is adequately demonstrated on multiple lines of evidence:

  • experience with large-scale industrial CO2 capture going back to the 1930s and large-scale experience with transporting and injecting CO2 going back to the 1970s;
  • studies by DOE and others demonstrating that the technologies are fully applicable to the power sector;
  • and third, several projects that are now moving forward that include the use of CCS.

(See, EPA Sept 20 proposal at pp. 215-237).

Prior industrial experience and comprehensive DOE studies are so strong that they would support EPA's conclusion that CCS is adequately demonstrated even if none of the current impending CCS power plant projects existed.

The 2005 EPACT simply does not bar EPA from considering these projects as part of the basis for its conclusions.  I was involved in the negotiations about this EPACT language and the word "solely" was included specifically to prevent anyone from claiming that just because a project receives government funding, EPA must ignore the project.  EPACT says EPA cannot base a standard only on such projects but it is completely lawful for EPA to point to these projects along with other evidence.

One of the letter’s authors (Rep. Ed Whitfield, R-KY) seems to understand that EPACT 2005 does not prevent EPA from taking these projects into account.  In a recent draft bill also authored by Rep. Whitfield, he took pains to include language that would explicitly prohibit EPA from any consideration of the results from projects receiving government funding.  So Congress did not do something this idiotic in 2005.  But as Mr. Whitfield’s bill demonstrates, as long as Congress is in session, idiocy always has another shot.

Quite apart from the misplaced argument from the 2005 EPACT, EPA's reference to the four CCS projects is entirely reasonable.  EPA bases its proposed standard on long industrial experience showing that both carbon capture and carbon injection work and on voluminous studies (not contradicted by anyone) establishing that these technologies are feasible to use in power plants.  (CCS is even in use at a few coal plants today but with smaller amounts of capture.)

The four projects cited by EPA show that the power industry itself has sufficient confidence in the technical readiness of CCS technology that it is including CCS in the designs of new commercial projects costing more than a billion dollars in several instances.

The fact that there are, in some cases, a few hundred million dollars of government assistance does not in any way weaken EPA's basic point: the industry has confidence this technology will work in real-world plants it is building.  Getting some government money would not induce power plant operators to include CCS in these plants if they thought the technology would not work.

It is a shame that members of Congress in positions of leadership choose to use their authority to try to block EPA from doing its job.  The Clean Air Act allows EPA to end the era of unlimited harmful carbon pollution from power plants.  We can only hope that most members of Congress are proud of the common sense law they enacted and are ready to help EPA carry it out.