On December 4 and 5, EPA’s Science Advisory Board (SAB) discussed whether to review the scientific basis for EPA’s requirement that new coal-fired power plants implement partial carbon capture and sequestration (CCS), which is included in EPA’s recently-proposed rule for such power plants.  See Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units (proposed Sept. 20, 2013).  CCS is a process whereby carbon dioxide emissions from stationary sources are captured and then injected underground for sequestration in porous rock formations.  The proposed rule finds that coal-fired units “implementing partial CCS best meets the requirements for” the “best system of emission reduction” standard.  Id. at 33.  The best system of emission reduction standard the degree of emission controls required by the Clean Air Act’s New Source Performance Standards provision, 42 U.S.C. § 7411.

In a November 12, 2013 memorandum, an SAB work group “recommend[ed] that the SAB review the science supporting” EPA’s proposed rule.  That work group noted that EPA’s rule “involves precedential and novel issues that rely on new technologies and science for” CCS, and that EPA’s proposed regulations are based on “three examples of implementing partial CCS.”  The work group also noted that certain studies relied on by EPA appeared to have been subject to “inadequate” peer review.  If the SAB decided to review the issue, it would likely assess whether the underlying science and technical feasibility of CCS supports requiring partial CCS as a regulatory requirement.

The SAB is advisory in nature and so does not have the authority to revise EPA’s proposal.  See 42 U.S.C. § 4365(a) (the SAB is to “provide . . . scientific advice”); 40 C.F.R. § 1.25(c) (the SAB “provides expert and independent advice to the Administrator on the scientific and technical issues facing” EPA).  Nevertheless, if the SAB disagrees with EPA’s judgment regarding the feasibility of partial CCS, that could substantially hinder EPA’s ability to defend its proposed rule from any legal challenges to EPA’s selection of partial CCS as the appropriate standard for coal-fired power plants.  On the other hand, if the SAB agreed with EPA, that could potentially support the rationale underlying EPA’s proposed rule and strengthen EPA’s position with respect to any challenges to the rule.

The SAB has not yet announced whether it will review the scientific basis underlying EPA’s partial CCS proposal, but rather has delayed that decision until at least early January.  The SAB is subject to the Federal Advisory Committee Act, and members of the public may provide comments to the SAB.  See, e.g., 78 Fed. Reg. 68,057, 68,058 (Nov. 13, 2013) (soliciting public input regarding the December 4-5 meeting).