Court Rejects EPA NSR Position in Alabama Case

The Center's worst fears have come true in regards to New Source Review (NSR) gridlock and the failure of Congress to pass the Clear Skies Initiatives (CSI) in 2004. Instead of the contentious NSR, which has only produced litigation instead of pollution mitigation, we would have the equivalent of the Clean Air Interstate Rule (CAIR) and Clean Air Mercury Rule (CAMR)--both 'get-around-Congress regulations--have been overruled by the courts.In the decade-long, ongoing battle over the New Source Review program, industry won another significant victory over EPA. The North District of Alabama handed power companies and their customers another significant victory in the NSR enforcement dispute. The court rejected EPA approach to whether a repair or replacement project is "routine" (and thus not subject to NSR) must be determined by reference to similar projects "at the unit."

The court held that "routine" must be judged "with reference to the industry as a whole, not just the particular.unit at issue." This holding reaffirms an earlier ruling of this court, as well as decisions by district courts in North Carolina and Kentucky. Each of these courts has rejected the government's position on "routine" and confirmed industry's position that routine must be evaluated with reference to the projects conducted by the industry as a whole. The Alabama court also took note of "EPA's different statements about what kind or type of work at plants in the industry.was [routine] and what was not."The court went on to say in the ruling that "using a plant specific test for activities that occurred as far back as 1985, when it was patently obvious what [Alabama Power] was doing, and the EPA said and did nothing.strikes the court as a 'gotcha' test."

The court also emphasized that, in order to prevail in this dispute, "EPA will have to prove that there was a physical change that resulted in a net emissions increase." In the recent Cinergy case involving similar facts, a jury found that the government had failed to meet this burden of proving an emissions increase from virtually all the projects at issue, including so-called "life extension" projects. The combination of Cinergy's rejection of the government's position on emissions increase, and the rejection of the government's "routine" standard by the Alabama court and other courts, raises serious questions about the viability of EPA's enforcement cases.

Kyoto Protocol Pollution Credits Benefitting Asia Most

The Kyoto Protocol, the United Nations air pollution trading system, does not directly reduce the amount of greenhouse gas emitted to the atmosphere, since each ton of carbon dioxide cut in a developing country allows someone in an industrialized country to pollute that same amount. Yet, the idea is to transfer money to poor countries to encourage construction of environmentally sensitive factories and spur alternative energy use. Otherwise, global greenhouse gas emissions would grow more quickly as developing nations like China expand their economies. Credit sales were initiated under the U.N. program in 2004.

Estimates of pollution credits as of April 2008 (carbon credits* in millions):

China------------------------------------- 44.6

India-------------------------------------- 42.9

South Korea----------------------------- 27.2

Brazil-------------------------------------- 21.5

Vietnam------------------------------------ 4.5

In Europe, the carbon credit market is mandatory. Carbon credits on that market have been trading in the $20 to $30 range. In the U.S. voluntary market, prices range from $1 to $10/credit. A credit is equal to 1 metric ton of carbon dioxide or equivalent greenhouse gas. Credit prices on the Chicago Climate Exchange (CCX) reached a low of $1.85 in January 2008 and traded as high as $4.55 in February 2008.

* Certified emissions reductions

Sources: United Nations Environment Programme Risoe Centre, International Monetary Fund, The Wall Street Journal

Superlattice Power, Inc Lithium-ion Battery Technology

Superlattice Power, Inc gained our attention when they took out a full page ad in the July 23, 2008 edition of USA Today. We are interested because the lithium-ion battery is powering everything from cars to cell phones and laptop computers.

Superlattice Power, Inc is focused on using its resources and efforts to develop and market lithium-powered vehicles and products for use in residential and commercial properties. Using its technology, the company is able to convert scooters, bicycles, mopeds, motorcycles, cars and even homes and businesses into zero-emission, lithium-powered vehicles and facilities.

The advertisement is aimed at potential investors. The Center is not endorsing the product because we have never used it. We are publicizing it because it sounds like an interesting improvement in an established product.

Nuclear Power Plants Operating on Earth As of May 2008

Nearly 24% of the world's 439 nuclear plants are in the USA. The nations with the most nuclear reactors are listed below (and the percentage of that nation's electricity that the reactors produce):

USA (19%)........................................................................104


France (77%)..................................................................... 59


Japan (28%)...................................................................... 55


Russia (16%)...................................................................... 31


South Korea (35%)............................................................. 20

Source: World Nuclear Association

Utilities Collaborate with Electric Vehicle Companies

Electric utility companies and General Motors have agreed to collaborate on comfortably, cost-effectively and reliably integrating plug-in electric vehicles into the grid. Toyota Motor Corporation and Ford Motor Company are also working on producing plug-in cars. Some of the utilities that operate in 40 states that are collaborating with GM include:

American Electric Power Company
Austin Energy
Consolidated Edison, Inc
Dominion Resources, Inc
Duke Energy Corporation
DTE Energy Company
Edison International
New York Power Authority
PG & E Corporation
Progress Energy Inc
Public Service Enterprise Group, Inc

GM's Chevy Volt (pictured) is due out in 2010. The Volt will go 40 miles on a full charge of the lithium-ion batteries before the gasoline engine kicks in. Plug-in electrics are using Lithium-ion and Nickel metal hydride (NiMH) batteries. The prospect for using nickel has caused the price of the commodity to rise, which is making the battery more expensive. The lithium-ion battery is like the one in laptops and cell phones and has a tendency to oveheat. Some have even exploded. Tesla Motors has designed a system to keep the batteries cool and under control however in its Tesla Roadster. Lithium-ion batteries also love to be recharged.

Utilities do not want to inadvertenty undermine grid reliability by not anticipating the increased demand from the addition of a significant number of plug-in vehicles to the grid. Research shows that there is enough excess electrical capacity at night to recharge tens of millions of vehicles without increasing capacity. Moreover, utilities and car makers want to benefit from Congressional legislation that will ultimately regulate carbon dioxide. If credits are given for replacing gasoline and cutting overall emissions, it might be cheaper to recharge a car overnight than to buy the equivalent amount of gasoline.

The Problems With Retrofitting Existing Structures

While it is evident that technology now permits a facility owner and operator to receive, manage, conserve, use and produce energy in a manner that would not have been possible in the past, only a relative few are taking advantage of the full range of possibilities. For retrofitting existing structures, the usual suspects that stand in the way of wider expansion are:

1. The time and cost demands of arranging for, and cooperating with, an energy audit;

2. The difficulty of changing entrenched methods of operation and retraining personnel;

3. The lack of compensation incentives (and possible risks) for the mid-level managers responsible for implementing change;

4. The perceived or real complexity of making changes; and

5. The difficulty of determining the cost/payback of implementing measures or seeking renewable energy as compared to continuing to use existing sources.

Sustainability Facility, Dec 2007

Court Strikes Down Clean Air Mercury Rule Exemptions

The U.S. Court of Appeals for the District of Columbia invalidated a 2005 EPA rule issued in February that would remove power plants from the Clean Air Act’s list of toxic sources – replacing it with a cap and trade regulatory scheme – to be in violation of the act. The Clean Air Mercury Rule (CAMR) was set to go into effect in 2010. Power plants that failed to meet emission targets, under the rule, would have been allowed to buy credits from plants that did, rather than having to install their own mercury emissions controls.

CAMR was the first nation-wide control rule. Fourteen states, a number of Native American tribes and environmental organizations filed the suit. EPA is now obligated to develop maximum achievable control technologies, or MACT, standards for power plant mercury emissions. The three-judge panel unanimously agreed with the states that the EPA did not have the authority to exempt the power plants. (Pollution Engineering)

See also: Court Strikes Down Clean Air Interstate Rule

Georgia Court Carbon Dioxide Ruling Will Be Overturned

Judge Thelma Wyatt Cummings Moore ruled this week that the proposed 1,200 megawatt Dynergy Inc/LS Power Group coal-burning power plant cannot proceed unless its carbon dioxide emissions are limited. She relied on the April 2007 Supreme Court decision for her ruling.

The Supreme Court in a 2007 decision required EPA to determine whether carbon dioxide endangers public health or welfare. EPA has yet to issue a rulemaking so the court is ahead of the regulating agency. This is the reason the George Ruling will be overturned on appeal. (The Wall Street Journal 7/1/08)

51 Republican Congresssmen Request Cut in Ethanol

The members of the U.S. House of Representatives sent a letter to the Environmental Protection Agency (EPA) requesting a reduction in the required ethanol production for this year because of fears that it will significantly increase already high corn prices.

The Renewable Fuel Standard (RFS) of the Energy Information and Security Act of 2007 requires 9 billion gallons of ethanol to be produced in 2008.

Greener Fireworks?

Environmentally friendly fireworks are available but it might be awhile before they can compete with cheaper Chinese imports. After all, the Chinese did invent gunpowder. Now there is a replacement that is relatively smoke free and does not use potassium perchlorate, an oxidant. Perchlorate mixed with charcoal and sulfur fuel is responsible for speeding up the fuel burning process and creating the fiery effects. Unfortunately, perchlorate is linked to thyroid damage. Pyrotechnics can often include potentially toxic color-producing heavy metals such as barium magnesium and copper. Red color results from the use of the chemical element strontium, blue from copper, gold from a sodium, orange from calcium and green from barium.

DMD Systems based in Ojo Caliente, New Mexico has produced a perchlorate-free substitute it calls nitrocellulose that burns with little smoke and "no fallout or residual combustion byproducts." Nitrocellulose has its own oxygen so it does not require a lot of additional oxidants and it burns cleanly. (The Washington Times, 7/2/08)