By Casey Graetz, Intern

On June 28, the New York State Department of Environmental Conservation (DEC) adopted regulations (6 NYCRR Parts 487 and 251) with two new important requirements for new and certain expanding major electric generating facilities in the state. First, Part 487 requires these facilities to conduct an environmental justice analysis that evaluates potential disproportionate impacts on nearby environmental justice communities. This rule makes New York the first state to require such an analysis in the siting of major electric generating facilities. Applicants must evaluate the significant and adverse disproportionate environmental impacts of a facility and avoid, minimize, or offset any such impact to the maximum extent practicable. Among other benefits, this regulation is designed to lessen the air quality burdens imposed on populations disproportionately affected by high asthma hospitalization.

Second, Part 251 sets forth new limits on CO2 emissions from new power plants with a generating capacity of at least 25 megawatts and any updated power plants whose capacity increases by at least 25 MW. As DEC Commissioner Joseph Martens explained in announcing them, these rules “will serve to further minimize the power sector’s contribution to climate change, which poses a substantial threat to public health and the Environment in New York.”

These CO2 regulations were promulgated in response to the Power NY Act of 2011, signed into law by Governor Cuomo in August 2011, which required a general reduction in emissions but did not specify how CO2 had to be limited. First proposed for public comment in January, these regulations set a CO2 emission limit of 925 pounds of CO2 per megawatt-hour of electricity for base load fossil fuel-fired plants. 

Shortly after New York’s proposed regulations were announced, the U.S. Environmental Protection Agency proposed a slightly less stringent CO2 New Source Performance Standard (NSPS) under the federal Clean Air Act. Like Part 251 in New York, the EPA’s NSPS would apply to certain new power plants, but would be a nationwide requirement. The EPA held two public hearings on the proposed regulations on May 24 and accepted written comments through June 25.

Should the NSPS be finalized, new power plants would be limited to the output-based emission standard of 1,000 pounds of CO2 per megawatt-hour of electricity produced. Currently coal-fired power plants would fail to meet these standards. Energy analysts have said such rules would prevent the construction of new coal plants unless they had carbon capture and storage systems, a technology that is not now commercially available.

Efficient natural gas plants, however, can easily meet these new standards. This fact, combined with gas’ low price, has led many utilities to turn to combined-cycle gas-fired units to generate around-the-clock power instead of coal. Critics of EPA’s proposed effective ban on new coal claim the regulations contradict President Obama’s “all of the above” energy policy, and coal industry lobbyists assert the rules will drive up energy prices and destroy jobs.

New York did not allow such criticisms to derail its push forward on its new CO2 regulations. One likely reason for New York’s ability to pass such rules that hold power plants to an even higher standard than EPA’s proposed national regulations is the scarcity of coal power plants in the state. Today there are only nine major coal units in New York, with coal accounting for just six percent of New York’s generating capacity. There are also no coal plants under active development.

New York’s groundbreaking regulations will take effect July 12.

 

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