Boldly Going Where No One Has Gone Before: In the Face of Uncertainty, Power Plants May Want to Consider Preemptively Addressing their Greenhouse Gas Emissions
By Thomas R. Carey (Chicago), David A. Franchina (Charlotte), Ashley A. Peck (Seattle), and Christopher S. Walker (Charlotte)
The U.S. Environmental Protection Agency recently issued regulations confirming that it will not regulate emissions of greenhouse gases (“GHGs”) from stationary sources in 2010. However, barring court intervention or action from Congress, EPA will regulate GHGs under the Clean Air Act (“CAA”) starting in 2011 through the Prevention of Significant Deterioration (“PSD”) construction permit program and other sections of the CAA.
Though it remains unclear what the practical effect of applying PSD for GHGs will ultimately be, power plants may want to address their GHG emissions sooner rather than later to prepare for eventual regulation and as a hedge against potential litigation.
This alert describes recent regulatory developments on GHG emissions, highlights actions underway to develop guidance for best available control technology (“BACT”) for GHGs under the PSD program, and suggests that power plants may want to consider addressing BACT for their GHG emissions prior to the onset of a legal mandate.
