Well, NSR (New Source Review) is back in the news. I’m really delighted to send you this article today. You probably know that I am a life member of Sierra Club having joined the Club in 1976. I have been actively engaged with the Club since about 1994, served on the Sierra Club Foundation Board for 12 years and then the Club Board for 5 years and am currently on the Illinois Chapter Board finishing up my first 2 year term. So it gives me great pride to pass along the following article that highlights the work we do, why you should care and how it is making the earth a better place for you personally and for all those you love and care about.
The article details in part how the Sierra Club works with coal fired power plant owners to shut down their facilities and how NSR is a critical part of the equation. In this case the Club sued over the violation of the NSR regulations. As my previous article describes, it is very technical but how NSR regulations are defined has a direct impact on the air YOU breathe. And if you have asthma, like my wife Debbie, the quality of the air you breathe, the amount of particulate matter that is allowed to be spewed out of the plant’s smokestacks along with other health and climate polluting emissions, matters. And it matters now even more due to how the COVID-19 pandemic is attacking peoples’ lungs such that any air pollution like this aggravates their condition and makes matters much worse.
This becomes an elevated issue for lower income communities who live in much closer proximity to the polluting facilities and thus is an environmental justice concern as well. And since lower income populations and people of color are disproportionately impacted by the virus this is especially devastating for them.
Enforcing NSR regulations matters and is how the whole Sierra Club effort to clean the air and eliminate coal plants in the US got started right here in Northeast Illinois. I’m so proud of the work we started right here and has resulted in the most successful environmental campaign in history! And many of you helped us back in the beginning for which we can all feel proud.
Here’s the salient part of the article:
“In a filing last month, DTE said it agreed to the side deal both to resolve potential claims “as well as to foster improved relations with Sierra Club and to provide significant benefits to a valued local community.” Regardless of whether the deal is entered as a federal consent decree or as an independent contractual agreement under state law, “DTE intends to abide by its commitments,” the company wrote in the filing.”
“The proposed consent decree, lodged in May, is intended to settle a decade-old enforcement suit alleging that Detroit-based DTE Energy Co. violated New Source Review permitting requirements by upgrading a southeastern Michigan power plant without installing needed controls for nitrogen oxides and sulfur dioxide.”
“It calls for the coal-fired units at the three plants to be retired by the end of 2022, specifies that any new buses be electric-powered and sets aside an additional $2 million for environmental projects that could include solar arrays and health and safety retrofits for low-income customers in the Detroit area.”
EPA Raises Objections Over Sierra Club-Utility Side Deal
Sean Reily, E&E News Reporter
Thursday, July 9, 2020
From constitutional concerns to suggestions of an anti-coal agenda, EPA is raising a host of objections to an agreement between the Sierra Club and a Michigan utility that would go beyond the terms of a proposed Clean Air Act consent decree.
“The United States remains unwilling to include this relief in its consent decree, as it is inconsistent with sound environmental enforcement policy and perverts litigation claims meant to help the general public, just to benefit a select few,” lawyers for the agency wrote in a filingyesterday with the U.S. District Court for the Eastern District of Michigan.
The proposed consent decree, lodged in May, is intended to settle a decade-old enforcement suit alleging that Detroit-based DTE Energy Co. violated New Source Review permitting requirements by upgrading a southeastern Michigan power plant without installing needed controls for nitrogen oxides and sulfur dioxide.
Among other features, the draft settlement between the government and DTE would let the company keep operating the remaining coal-fired generating units at three other plants if they are retrofitted with new pollution controls or converted to natural gas as a fuel source. It would also require the company to spend $5.5 million on cleaner-burning transit or school buses (Greenwire, May 27).
But DTE’s side agreement with the Sierra Club, which had long been allied with the government in the enforcement case, goes further in several respects. It calls for the coal-fired units at the three plants to be retired by the end of 2022, specifies that any new buses be electric-powered and sets aside an additional $2 million for environmental projects that could include solar arrays and health and safety retrofits for low-income customers in the Detroit area.
In yesterday’s response, however, EPA lawyers questioned whether the Sierra Club had the legal standing to arrive at the side agreement and urged Senior Judge Bernard Friedman to avoid interpreting the Clean Air Act in a way that could raise constitutional issues.
“For years, members of the Supreme Court have recognized the ‘[d]ifficult and fundamental questions’ that arise when private citizen groups exercise a power that the Constitution commits to the Executive alone,” they wrote in opposing the Sierra Club’s motion for court approval of the side agreement.
They also suggested that any added costs of the agreement would be borne by DTE customers. “Additionally, unlike the Sierra Club, the United States has not opted to pursue an anti-coal policy approach as part of an ill-advised effort to pick marketplace winners and losers,” their filing says.
While asking Friedman to sign off on the side agreement, the Sierra Club maintains that such approval is not needed for a private settlement. Whatever Friedman’s decision, DTE has already said it plans to comply with the terms.
In a filing last month, DTE said it agreed to the side deal both to resolve potential claims “as well as to foster improved relations with Sierra Club and to provide significant benefits to a valued localcommunity.” Regardless of whether the deal is entered as a federal consent decree or as an independent contractual agreement under state law, “DTE intends to abide by its commitments,” the company wrote in the filing.
Helping DTE pursue plans to shut down three coal-fired power plants are attorneys from the firm now called Hunton Andrews Kurth LLP, traditionally known for its aggressive defenses of the coal-fired power industry.
