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EPA's Environmental Appeals Board Upholds Greenhouse Gas BACT Determination With Important Implications for Power Plant Developers

On March 14, 2014, the U.S. EPA Environmental Appeals Board denied Sierra Club’s petition to review a GHG permit issued for the construction and operation of a combined-cycle natural gas-fired power plant in Texas. The decision significantly defines the contours of the adequacy of a greenhouse gas (GHG) Best Available Control Technology (BACT) determination for a gas-fired plant, confirming that marginal differences in efficiency among gas turbines do not necessarily require selection of the highest efficiency turbine to meet BACT. Together with a decision issued last year affirming that less efficient simple cycle technology can satisfy BACT for GHGs, this latest decision suggests that BACT for GHGs will not necessarily dictate selection of the most efficient generating technology to the exclusion of all other considerations, such as the specific demand for power and other operational characteristics the project is intended to supply.

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