EPA Proposes New Power Plant Carbon Dioxide Limits

On September 20, 2013, EPA proposed new source performance standards (NSPS) for carbon dioxide emissions from new fossil fuel-fired power plants under Section 111(b) of the Clean Air Act, 42 U.S.C. § 7411(b). This proposal replaces a 2012 proposal, which EPA will withdraw. Although the new proposal has been changed to respond to significant legal concerns raised in opposition to the prior proposal, fundamental questions remain about the lawfulness and appropriateness of the re-proposed standards.

Clean Air Act Section 111(b) requires the agency to list categories of stationary sources of "air pollution which may reasonably be anticipated to endanger public health or welfare." The agency is then required to establish performance standards limiting these source categories' emissions of air pollutants to a level "achievable through the application of the best system of emission reduction" (BSER) which, taking into account cost, energy, health, and other environmental