Read My Lips: No Tax Credit Polluter Havens

Last week I blogged here about the letter from four House members claiming that EPA's proposed carbon pollution rule for new coal plants violated the 2005 Energy Policy Act (EPACT).  EPACT includes grants and tax credits for certain coal power projects.  The issue is whether EPACT requires EPA to ignore the performance of pollution control technologies used at these projects when EPA sets pollution standards under the Clean Air Act.

I pointed out that EPACT says only that the use of a technology in such projects does not by itself establish that the technology is "adequately demonstrated" for purposes of the Clean Air Act.  Contrary to the letter's claims, EPACT simply does not bar EPA from considering these projects when it sets standards.

But others have argued that EPACT's section 48A(g) may indeed bar EPA from considering these projects and thus shrink the basis for EPA's conclusion that partial carbon capture and sequestration (CCS) systems are adequately demonstrated for new coal power plants.

Are they right?  Nope.  The rest of this blog may read like a bad law school lecture but it is actually just about reading and writing plain English.  Not so bad, really.

Here is the text of EPACT section 48A(g):

‘‘(g) APPLICABILITY. —No use of technology (or level of emission reduction solely by reason of the use of the technology), and no achievement of any emission reduction by the demonstration of any technology or performance level, by or at one or more facilities with respect to which a credit is allowed under this section, shall be considered to indicate that the technology or performance level is--

(1) adequately demonstrated for purposes of section 111 of the Clean Air Act (42 U.S.C. 7411);

(2) achievable for purposes of section 169 of that Act (42 U.S.C. 7479); or

(3) achievable in practice for purposes of section 171 of such Act (42 U.S.C. 7501)."

(OK, I admit that is pretty bad.  But stay with me.)

Stripped down to its subject-verb-object bones, the provision says--

"No use of one or more facilities [getting a tax credit under this section] ...shall be considered to indicate that the demonstrated for purposes of section 111 of the Clean Air Act...."

(OK, still not lapidary prose.)

Now, the Congressmen claim this language "specifically prohibits EPA from considering technology used at a facility receiving advanced coal project tax credit, as being 'adequately demonstrated' for purposes of Section 111 of the CAA."  But that's not so.

A specific prohibition aimed at EPA would read like this: "the Administrator may not consider the use of a technology at one of more facilities [getting a tax credit under this section] in determining whether the technology is adequately demonstrated for purposes of section 111."

Even this language would not prevent EPA from concluding that a technology that happened to be used at one of these tax credit projects was adequately demonstrated under section 111.  Rather, it would prevent EPA from including the information from such projects as part of the basis for concluding the technology was adequately demonstrated.  If EPA had sufficient other information, it could base a standard on that technology.

But the language Congress actually wrote is different from a clear declarative sentence that EPA "may not consider" information from these projects.  The text of section 48A(g) simply does not compel the meaning the four Congressmen would like it to have.  My English teachers always railed against the use of the passive voice and section 48A(g) is a good example of why we should avoid that voice.  Saying "no use of technology shall be considered to indicate" is bend-over-backward awkward phrasing if one is trying to tell someone not to "consider" a piece of information.  When a judge tells a jury not to consider a statement, he or she uses clear, unambiguous language: "the jury shall disregard the witness's last statement."

Section 48A(g) uses the intransitive of the verb "consider," while the four Congressmen are using its transitive form.  In its intransitive form "considered" is a synonym for "deemed;" as in "the accused shall be considered innocent until proven guilty."  This usage constrasts with the transitive form; as in "the admissions office will consider all of your senior year grades before making a decision."

Thus, the most natural reading of the EPACT provision is that the use of a technology by one of these projects shall not by itself cause the technology to be "considered" (deemed) to be adequately demonstrated for purposes of the Clean Air Act.  Indeed, this is how the House Energy and Commerce Committee described the intent of one of the sister provisions of section 48A(g) in its report on the bill that became EPACT:

"Subsection (f) specifies that the use of a certain technology by any facility assisted under this subtitle ... will not result in that technology ... being considered achievable, achievable in practice, or ‘adequately demonstrated’ for purposes of sections 111, 169 or 171 of the Clean Air Act." 

H. Rept. 109-215, part 1, at 238-239 (July 29, 2005).

What all this means in plain English, as I explained in last week's blog, is that EPA may not conclude that CCS is adequately demonstrated solely because it is being used at these taxpayer-supported projects.  EPA must present additional evidence to support its conclusion.  But EPACT does not bar EPA from citing government-supported projects to buttress its conclusion that the technology is viable.  As my earlier blog notes, EPA's proposed rule fully complies with the EPACT provisions.

About the Authors

David Hawkins

Director, Climate program

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