Your Nov. 9 editorial “NC goes wrong on clean power” was entirely wrong.
The Department of Environmental Quality drafted a well thought-out plan to improve energy efficiencies at four Duke Energy power plants. The proposal approved Nov. 5 to go to public notice and hearing is the only choice for DEQ and the Environmental Management Commission to submit a legally viable plan. It is a Building Block 1 plan under the Clean Power Plan. Building Block 1 is the only portion of the CPP the EMC has legal authority to adopt. The other two CPP building blocks – 75 percent dispatch of natural gas-fired units and increasing renewable energy sources – are beyond our legal authority.
Unfortunately, The N&O has failed to report this lack of authority. . The N&O also missed the fact Duke Energy, along with several environmental and industry groups, opposed the proposal. Its position was even supported by the attorney general, who sent a belated letter two days before the EMC met arguing that public input would be impaired by the EMC acting on the proposal.
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The AG was incorrect. Sending the proposal to notice and hearing opens the way for full public participation through written comments and public hearings – three will be held across North Carolina.
The CPP clearly exceeds EPA’s statutory authority under CAA Section 111(d). During nearly 10 years with the Office of General Counsel, I was responsible for advising EPA’s Air Program on the correct interpretation and implementation of the Section 111 program. Nothing in the statute authorizes most of the CPP. Similar to EPA’s prior attempt to regulate greenhouse gases through a jury-rigged permitting system struck down by the Supreme Court last year, the CPP will also fail.
You failed to credit NC’s leading reductions in carbon dioxide emissions from power plants – reduced more than 24 percent since 2005. But the CPP does not credit those reductions and sets an artificial base date of 2012. As a result, NC is penalized under the CPP for its early reductions.
In a final stratagem to delay court review, EPA withheld publication of the final CPP from Aug. 6 until Oct. 23. The nearly three-month delay prevented states and others from filing lawsuits. The proposal is the only legally viable action DEQ and EMC could take at this time. However, DEQ has announced a stakeholder process to consider broader approaches. Without new statutory authority, any plan with Building Blocks 2 or 3 will require legislative action.
Opponents of the proposal could have gone to the legislature for such authority during the 2015 session. Instead, they pushed HB 571, a procedural bill that would have accomplished nothing beyond ensnarling DEQ, EMC and the Utilities Commission in a wholly unnecessary procedural morass. If they truly believe NC should pursue a full CPP, their arguments should be made to the legislature.
Former EPA assistant general counsel and chairman of the Air Quality Committee of the Environmental Management Commission
The length limit was waived to permit a fuller response to the editorial The views are his own.