Dive Brief:
- The U.S. Court of Appeals for the D.C. Circuit on Tuesday mostly agreed with the Environmental Protection Agency's rejection of Maryland and Delaware's petitions to tighten pollution limits on upwind power plants, which the two states claim are impacting their ability to meet federal ozone standards.
- But the court found EPA's reason for rejecting Maryland's request to address selective non-catalytic reduction (SNCR) controls at two power plants inadequate and remanded that part of the petition to the agency for further review. The ruling is not only important for Maryland, but for other states seeking remedies for their ozone non-attainment status, an attorney involved with the case told Utility Dive.
- The EPA must now conduct an analysis of SNCR controls compared with other ways of meeting air quality standards in Maryland to determine if the SNCRs are cost-effective.
Dive Insight:
The ruling is "a partial, but significant victory" for Maryland and downwind states more generally, Jack Lienke, regulatory policy director at the New York University School of Law's Institute for Policy Integrity, told Utility Dive. The institute is involved in the case as an amicus curiae, or 'friend of the court', on behalf of Delaware and Maryland.
This case deals with EPA's 2008 ozone standards. There will inevitably be another round of petitions with respect to non-attainment of the 2015 ozone standards, he told Utility Dive.
In the future, EPA won't be able to just tell states seeking remedies for their non-attainment status, 'you're out of luck, it's too expensive,' Lienke said.
In 2016, Maryland and Delaware petitioned EPA under Section 126 of the Clean Air Act, saying the agency had an obligation to reduce significant contributions from upwind states that prevent them from attaining federal ozone standards.
Maryland's petition targeted 36 power plants across five states, including two facilities operating SNCRs, one in Pennsylvania, the other in West Virginia. But while EPA conceded that the two facilities are impacting Maryland's ability to meet federal ozone standards, it said that the operation of SNCRs is not cost effective, and it would not require facilities to use them.
According to EPA, SNCRs are "a post combustion emissions control technology for reducing NOx by injecting an ammonia type reactant into the furnace at a properly determined location." The technology is often used "since it requires a relatively low capital expense for installation, albeit with relatively higher operating costs."
The court rejected EPA's finding and said the agency must conduct a new analysis that compares use of SNCRs with other methods of attaining the 2008 ozone standards within Maryland's 2021 statutory deadline, Lienke noted.
EPA has to point to another way of reducing pollution that's more cost effective than use of the SNCRs before rejecting their use. It can't just tell states their proposed remedy is too costly and they have to live with poor air quality, he said.
It will be difficult for the agency to go back and deny Maryland's petition again on the same grounds — that the controls are not cost-effective, he told Utility Dive.
But EPA counsel suggested during oral argument that the agency's "judgment about non-catalytic controls 'probably' would not change," the court's ruling noted.
While the D.C. Circuit rejected EPA's arguments on SNCRs, it found other parts of the agency's decision to deny the Maryland and Delaware petitions 'reasonable.' It deferred to EPA’s finding that upwind sources with selective catalytic reduction controls are already optimizing their use.
EPA and Duke Energy, which intervened in the case on EPA's side, told Utility Dive they are reviewing the decision.
The most immediate impact from Tuesday's ruling could be on a similar case with New York.
Last October, EPA denied a Section 126 petition from New York "on substantially similar grounds," the court noted. That same month, EPA petitioned the D.C. Circuit for review of EPA's decision and oral arguments were held May 7.
