II
110th CONGRESS
1st Session
S. 1177
IN THE SENATE OF THE UNITED STATES
April 20, 2007
Mr. Carper (for himself, Mr. Sununu, Mr. Gregg, Mr. Dodd, Mrs. Feinstein, Mrs. Lincoln, Mr. Lieberman, and Ms. Collins) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works
A BILL
To amend the Clean Air Act to establish a national uniform multiple air pollutant regulatory program for the electric generating sector.
Short title
This Act may be cited as the
Clean Air Planning Act of
2007
.
Findings and purposes
Findings
Congress finds that—
in 1992, the Unites States became a signatory to the United Nations Framework Convention on Climate Change, done at New York on May 9, 1992, in recognition of the need to begin to reverse the adverse effects of global warming by decreasing greenhouse gas emission levels to 1990 levels;
fossil fuel-fired electric generating facilities, consisting of facilities fueled by coal, fuel oil, and natural gas, produce nearly 2/3 of the electricity generated in the United States;
fossil fuel-fired electric generating facilities produce approximately 67 percent of the total sulfur dioxide emissions, 23 percent of the total nitrogen oxides emissions, 40 percent of the total carbon dioxide emissions, and 40 percent of the total mercury emissions, in the United States;
in 1977, in amending the Clean Air Act (42 U.S.C. 7401 et seq.), Congress sought to prevent adverse impacts caused by manmade pollution on national parks and wilderness areas designated as class I areas under section 162(a) of that Act (42 U.S.C. 7472(a));
as of the date of enactment of this Act—
many class I areas are impaired by haze pollution;
the ecosystems of many class I areas are impacted by deposits of acidic and toxic compounds; and
the air quality of many class I areas fails to meet national ambient air quality standards; and
fossil-fuel fired electric generating units are the major source of air pollution impacting class I areas; and
proposed new fossil-fuel fired electric generating units threaten to increase air pollution in class I areas throughout the United States;
on implementing an acid rain program in 1990, the Administrator of the Environmental Protection Agency (referred to in this subsection as the Administrator) overestimated the actual cost of sulfur dioxide permits by more than a factor of 5; and
after years of carrying out the
program, the Administrator acknowledged that independent studies show
that real life experiences with the program reveal greater cost savings than
initially expected, due in large part to the efficiencies achieved through
emissions trading
;
nearly 3/4 of all powerplant boilers in operation on the date of enactment of this Act are more than 30 years old, and most continue to operate without modern pollution control technology; and
those older powerplants release approximately 99 percent of the sulfur dioxide, 98 percent of the nitrogen oxides, and 91 percent of the carbon dioxide emitted from all powerplants;
many electric generating facilities have been exempt from the emission limitations applicable to new units based on the expectation that over time the units would be retired or updated with new pollution control equipment; but
many of the exempted units continue to operate and emit pollutants at relatively high rates;
according to the
analysis by the Administrator of the rule of the Administrator entitled the
Clean Air Interstate Rule
(70 Fed. Reg. 25162 (May 12, 2005)),
the majority of the 1,168 outdated coal-fired powerplant boilers in operation
in the eastern United States on the date of enactment of this Act will operate
without sulfur dioxide scrubbers and advanced nitrogen oxide controls even
after the implementation of that rule is completed in 2020, such that—
858 plants will operate without sulfur dioxide scrubbers; and
915 powerplants will operate without advanced nitrogen oxide controls;
according to the Energy Outlook for 2006 of the Energy Information Administration, carbon dioxide emissions from electric generating units in the Unites States have increased by 32 percent during the period of 1990 through 2006;
the deployment by the electric utility sector of zero- and low-emitting generation technologies should be accelerated given the increase in carbon dioxide emissions from the electric utility sector described in paragraph (9);
the ability of owners of electric generating facilities to plan effectively for the future is impeded by the uncertainties surrounding future environmental regulatory requirements that are imposed inefficiently on a piecemeal basis;
many owners of electric generating units have failed—
to install best available control technology for emissions reductions; and
to retire the units, as anticipated by Congress in the new source review provisions of the prevention of significant deterioration and nonattainment programs of the Clean Air Act (42 U.S.C. 7401 et seq.);
according to the Administrator, many owners of electric generating units carried out projects to extend the economic lives of the units without upgrading the emission controls of the units to best available control technology levels;
according to the National Energy Technology Laboratory of the Department of Energy—
as of the date of enactment of this Act, 159 new coal-fired electric generating units are proposed to be constructed, which would produce 96 gigawatts of new electric generating capacity; and
if the units described in subparagraph (A) are constructed, the units would produce—
an incremental increase of 500,000,000 tons of carbon dioxide per year from the production by the power sector in the United States as in existence on the date of enactment of this Act; and
an estimated 30,000,000,000 additional tons of carbon dioxide over the course of the useful lives of the units (assuming a lifespan of 60 years);
total emissions of carbon dioxide from the United States should be on a reduction pathway to achieve a 60 percent to 80 percent reduction from current levels by 2050;
pollution from electric generating facilities in existence on the date of enactment of this Act can be reduced through the adoption of modern technologies and practices;
a report of the Congressional Budget Office, dated September 19, 2006, concluded that—
relying exclusively on research and development funding is not the most effective strategy for reducing greenhouse gas emissions; and
combining research and development funding with a gradually-increasing limitation on emissions is a more cost-effective approach;
agriculture can be part of the solution to reducing greenhouse gas emissions;
less productive agricultural land can be reforested with carbon dioxide-consuming trees;
farming practices can be improved to increase the absorption and retention of carbon in agricultural soils;
biomass from agricultural sources (including corn and grass) could be used to produce biofuels that can take the place of high-carbon fossil fuels used in transportation and power generation; and
many of the farming practices and land use changes involved in achieving those reductions have multiple benefits, including—
improving soil, water, and air quality;
increasing wildlife habitat; and
providing additional recreational opportunities; and
States and regions have increasingly adopted programs to address carbon dioxide emissions from electric generating facilities, and Federal regulations relating to carbon dioxide emissions should take those programs into consideration.
Purposes
The purposes of this Act are—
to protect and preserve the environment and safeguard public health by ensuring that substantial emission reductions are achieved at fossil fuel-fired electric generating facilities;
to reduce significantly the quantities of mercury, carbon dioxide, sulfur dioxide, and nitrogen oxides that enter the environment as a result of the combustion of fossil fuels;
to ensure that air quality of national parks and all other class I areas (as designated by section 162(a) of the Clean Air Act (42 U.S.C. 7472(a))) impacted by emissions from fossil-fuel fired electric generating units is significantly improved by 2016, the year in which the National Park System celebrates its 100th anniversary;
to encourage the development and use of renewable energy;
to internalize the cost of protecting the values of public health, air, land, and water quality;
to provide a period of environmental regulatory stability for owners and operators of electric generating facilities so as to promote improved management of existing assets and new capital investments;
to achieve emission reductions from electric generating facilities in a cost-effective manner;
to establish a mandatory cap-and-trade system for the electric power sector that is part of an economy-wide national greenhouse gas trading market;
to provide for the future integration of additional sectors of the economy into such a greenhouse gas trading market; and
to establish a regulatory system that, by 2050, will allow for a reduction in United States greenhouse gas emissions to a level of approximately 20 percent to 40 percent of levels of emissions as of the date of enactment of this Act.
Integrated air quality planning for the electric generating sector
The Clean Air Act (42 U.S.C. 7401 et seq.) is amended by adding at the end the following:
Integrated air quality planning for the electric generating sector
TITLE VII—Integrated air quality planning for the electric generating sector
Sec. 701. Definitions.
Sec. 702. National pollutant tonnage limitations.
Sec. 703. Nitrogen oxide trading program.
Sec. 704. Mercury program.
Sec. 705. Carbon dioxide allowance trading program.
Sec. 706. Distribution of allowances between auctions and allocations; nature of allowances.
Sec. 707. Auction of allowances.
Sec. 708. Climate Action Trust Fund.
Definitions
In this title:
Affected unit
Carbon dioxide
In general
The term affected unit, with respect to carbon dioxide, means a fossil fuel-fired electric generating facility (including a cogeneration facility) that—
on or after January 1, 1985, served as a generator with a nameplate capacity greater than 25 megawatts; and
produces electricity for sale.
Inclusion
The term affected unit, with respect to nuclear facilities, includes only incremental nuclear generation facilities.
Mercury
The term affected unit, with respect to mercury, means a coal-fired electric generating facility (including a cogeneration facility) that—
on or after January 1, 1985, served as a generator with a nameplate capacity greater than 25 megawatts; and
produces electricity for sale.
Nitrogen oxides
The term affected unit, with respect to nitrogen oxides, means a fossil fuel-fired electric generating facility (including a cogeneration facility) that—
on or after January 1, 1985, served as a generator with a nameplate capacity greater than 25 megawatts; and
produces electricity for sale.
Sulfur dioxide
The term affected unit, with respect to sulfur dioxide, has the meaning given the term in section 402.
Carbon dioxide allowance
The term carbon dioxide allowance means an authorization allocated by the Administrator under this title to emit 1 ton of carbon dioxide during or after a specified calendar year.
Cogeneration facility
The term cogeneration facility means a facility that—
cogenerates—
steam; and
electricity; and
supplies, on a net annual basis, to any utility power distribution system for sale—
more than 1/3 of the potential electric output capacity of the facility; and
more than 219,000 megawatt-hours of electrical output.
Covered unit
The term covered unit means—
an affected unit;
with respect to incremental nuclear generation, a nuclear generating unit; and
a renewable energy unit.
Fossil fuel-fired
The term fossil fuel-fired, with respect to an electric generating facility, means the combustion of fossil fuel by the electric generating facility, alone or in combination with any other fuel, in any case in which the fossil fuel combusted comprises, or is projected to comprise, more than 20 percent of the annual heat input of the electric generating facility, on a Btu basis, during any calendar year.
Fund
The term Fund means the Climate Action Trust Fund established by section 708(a)(1).
Greenhouse gas
The term greenhouse gas means—
carbon dioxide;
methane;
nitrous oxide;
hydrofluorocarbons;
perfluorocarbons; and
sulfur hexafluoride.
Incremental nuclear generation
The term incremental nuclear generation means, as determined by the Administrator and measured in megawatt hours, the difference between—
the quantity of electricity generated by a nuclear generating unit in a calendar year; and
the quantity of electricity generated by the nuclear generating unit in calendar year 1990.
New unit
The term new unit means an affected unit that has operated for not more than 3 years and is not eligible to receive—
sulfur dioxide allowances under section 417(b);
nitrogen oxide allowances under section 703(c)(2); or
carbon dioxide allowances under section 705(d).
Nitrogen oxide allowance
The term nitrogen oxide allowance means an authorization allocated by the Administrator under this title to emit 1 ton of nitrogen oxides during or after a specified calendar year.
Nuclear generating unit
The term nuclear generating unit means an electric generating facility that—
uses nuclear energy to supply electricity to the electric power grid; and
entered operation in calendar year 1990 or earlier.
Renewable energy
The term renewable energy means electric energy generated from solar energy, wind, hydroelectric energy, biomass, landfill gas, ocean energy (including tidal, wave, current, and thermal energy), or geothermal energy.
Sequestration
The term sequestration means the action of sequestering carbon by—
enhancing a natural carbon sink (such as through afforestation); or
capturing the carbon dioxide emitted from a fossil fuel-based energy system; and
storing the carbon in a geologic formation for not less than 300 years in a manner that prevents any release of the carbon dioxide in a quantity greater than 1 percent of the total quantity so stored; or
converting the carbon to a benign solid material through a biological or chemical process.
Sulfur dioxide allowance
The term sulfur dioxide allowance has the meaning given the term allowance in section 402.
National pollutant tonnage limitations
Sulfur dioxide
The annual tonnage limitation for emissions of sulfur dioxide from affected units in the United States shall be equal to—
for each of calendar years 2012 through 2014, 3,500,000 tons; and
for calendar year 2015 and each calendar year thereafter, 2,000,000 tons.
Nitrogen oxides
Definitions
In this subsection:
Zone 1 State
The term Zone 1 State means the District of Columbia or any of the States of Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia, and Wisconsin.
Zone 2 State
The term Zone 2 State means any State within the 48 contiguous States that is not a Zone 1 State.
Applicability
Zone 1 Prohibition
In general
Beginning on January 1, 2012, it shall be unlawful for an affected unit in a Zone 1 State to emit a total amount of nitrogen oxides during a year in excess of the number of nitrogen oxide allowances held for the affected unit for that year by the owner or operator of the affected unit.
Limitation
Only nitrogen oxide allowances under paragraph (3)(A) shall be held in order to meet the requirements of clause (i).
Zone 2 Prohibition
In general
Beginning on January 1, 2012, it shall be unlawful for an affected unit in a Zone 2 State to emit a total amount of nitrogen oxides during a year in excess of the number of nitrogen oxide allowances held for the affected unit for that year by the owner or operator of the affected unit.
Limitation
Only nitrogen oxide allowances under paragraph (3)(B) shall be held in order to meet the requirements of clause (i).
Limitations on total emissions
Zone 1 limitations
The Administrator shall allocate an annual tonnage limitation for emissions of nitrogen oxides from affected units in the Zone 1 States in an amount equal to—
for each of calendar years 2012 through 2014, 1,390,000 tons; and
for calendar year 2015 and each calendar year thereafter, 1,300,000 tons.
Zone 2 limitations
The Administrator shall allocate an annual tonnage limitation for emissions of nitrogen oxides from affected units in the Zone 2 States in an amount equal to—
for each of calendar years 2012 through 2014, 400,000 tons; and
for calendar year 2015 and each calendar year thereafter, 320,000 tons.
Mercury
The emission of mercury from affected units shall be limited in accordance with section 704.
Carbon dioxide
In general
The annual tonnage limitation for emissions of carbon dioxide from affected units in the United States shall be equal to, as determined by the Administrator based on certified and quality-assured continuous emissions monitoring data for carbon dioxide reported to the Administrator by affected units in accordance with this Act—
for each of calendar years 2012 through 2014, the quantity of emissions emitted from affected units in calendar year 2006;
for calendar year 2015, the quantity of emissions emitted from affected units in calendar year 2001;
for each of calendar years 2016 through 2019, the aggregate quantity of emissions emitted from affected units during the calendar year that is 1 percent less than the aggregate quantity of emissions from affected units allowed pursuant to this section during the preceding calendar year; and
for calendar year 2020 and each calendar year thereafter, the aggregate quantity of emissions emitted during the calendar year that is 1.5 percent less than the aggregate quantity of emissions from affected units allowed pursuant to this section during the preceding calendar year.
Additional limitations
For calendar year 2030 and each calendar year thereafter, in accordance with subsection (e), the Administrator shall take into consideration the practicability of increasing the reduction in emissions of carbon dioxide required for the calendar year to at least 3 percent less than the aggregate quantity of emissions emitted during the preceding calendar year.
Review of annual tonnage limitations and mercury emissions requirements
Determination by Administrator
Not later than 10 years after the date of enactment of this title and every 10 years thereafter, the Administrator shall determine—
after considering impacts on human health, the environment, the economy, and costs, whether 1 or more of the annual tonnage limitations should be revised; and
whether the mercury emission requirements under section 704 should be revised in accordance with the risk standards described in section 112(f)(2).
Determination not to revise
If the Administrator determines under paragraph (1) that no annual tonnage limitation or mercury emission requirement should be revised, the Administrator shall publish in the Federal Register—
a notice of the determination; and
the reasons for the determination.
Determination to revise
If the Administrator determines under paragraph (1) that 1 or more of the annual tonnage limitations or mercury emissions requirements should be revised, the Administrator shall publish in the Federal Register—
not later than 10 years and 180 days after the date of enactment of this title, proposed regulations implementing the revisions; and
not later than 11 years and 180 days after the date of enactment of this title, final regulations implementing the revisions.
Administration
The duty of the Administrator to make a determination under paragraph (1) shall be—
considered to be a nondiscretionary duty;
enforceable through a citizen suit under section 304; and
subject to rulemaking procedures and judicial review under section 307.
Requirement
No revision of an annual tonnage limitation or mercury emission requirement under this subsection shall result in a limitation or emission requirement that is less stringent than an existing applicable requirement under this title.
Reduction of emissions from specified affected units
Notwithstanding the annual tonnage limitations and mercury emissions requirements established under this section, the Federal Government or a State government may require that emissions from a specified affected unit be reduced.
General enforcement
In general
It shall be unlawful for any individual or entity subject to this title to violate any requirement or prohibition under this title.
Treatment of excess emissions
In calculating any penalty for violation of this title, each ton of emissions of sulfur dioxide, nitrogen oxides, mercury, or a greenhouse gas emitted by a covered unit during a calendar year in excess of the allowances held for use by the covered unit for the calendar year shall be considered to be a separate violation of the applicable limitation under this title.
Nitrogen oxide trading program
Regulations
In general
Not later than January 1, 2010, the Administrator shall promulgate regulations to establish for affected units in the United States a nitrogen oxide allowance trading program.
Requirements
Regulations promulgated under paragraph (1) shall establish requirements for the allowance trading program under this section, including requirements concerning—
the generation, allocation, issuance, recording, tracking, transfer, and use of nitrogen oxide allowances; and
the public availability of all information concerning the activities described in clause (i) that is not confidential;
compliance with subsection (e)(1);
the monitoring and reporting of emissions under paragraphs (2) and (3) of subsection (e); and
excess emission penalties under subsection (e)(4).
Mixed fuel, cogeneration facilities and combined heat and power facilities
The Administrator shall promulgate such regulations as the Administrator determines to be necessary to ensure the equitable issuance of allowances to—
facilities that use more than 1 energy source to produce electricity; and
facilities that produce electricity in addition to another service or product.
New unit reserves
Establishment
For each calendar year, based on projections of electricity output from new units, the Administrator, in consultation with the Secretary of Energy, shall establish by regulation a reserve of nitrogen oxide allowances to be set aside for use by new units in Zone 1 States, and a reserve of nitrogen oxide allowances to be set aside for use by new units in Zone 2 States, that is not less than 5 percent of the total allowances allocated to affected units for the calendar year.
Unused allowances
For each calendar year, the Administrator shall reallocate, to all affected units, any unused nitrogen oxide allowances from the new unit reserve established under paragraph (1) in the proportion that—
the number of allowances allocated to each affected unit for the calendar year; bears to
the number of allowances allocated to all affected units for the calendar year.
Nitrogen oxide allocations
Timing of allocations
The Administrator shall allocate nitrogen oxide allowances to affected units by not later than December 31 of calendar year 2008 and each calendar year thereafter, for the fourth calendar year that begins after that December 31.
Allocations to affected units that are not new units
Zone 1 States
The Administrator shall allocate, to each affected unit in a Zone 1 State that is not a new unit, a quantity of nitrogen oxide allowances that is equal to the product obtained by multiplying—
the quantity of nitrogen oxide allowances available for allocation under paragraph (3)(A); and
the quotient obtained by dividing—
the annual average quantity of electricity generated by the unit during the most recent 3-calendar year period for which data are available, updated each calendar year and measured in megawatt hours; and
the total of the average quantities described in subclause (I) with respect to all affected units in all Zone 1 States.
Zone 2 States
The Administrator shall allocate, to each affected unit in a Zone 2 State that is not a new unit, a quantity of nitrogen oxide allowances that is equal to the product obtained by multiplying—
the quantity of nitrogen oxide allowances available for allocation under paragraph (3)(B); and
the quotient obtained by dividing—
the annual average quantity of electricity generated by the unit during the most recent 3-calendar year period for which data are available, updated each calendar year and measured in megawatt hours; and
the total of the average quantities described in subclause (I) with respect to all affected units in all Zone 2 States.
Quantity to be allocated
Zone 1 States
For each calendar year, the quantity of nitrogen oxide allowances allocated under paragraph (2)(A) to affected units that are not new units shall be equal to the difference between—
the annual tonnage limitation for emissions of nitrogen oxides from affected units specified in section 702(b)(3)(A) for the calendar year; and
the quantity of nitrogen oxide allowances placed in the new unit reserve established under subsection (b) for the calendar year.
Zone 2 States
For each calendar year, the quantity of nitrogen oxide allowances allocated under paragraph (2)(B) to affected units that are not new units shall be equal to the difference between—
the annual tonnage limitation for emissions of nitrogen oxides from affected units specified in section 702(b)(3)(B) for the calendar year; and
the quantity of nitrogen oxide allowances placed in the new unit reserve established under subsection (b) for the calendar year.
Adjustment of allocations
If, for any calendar year, the total quantities of allowances allocated under paragraph (2) are not equal to the applicable quantities determined under paragraph (3), the Administrator shall adjust the quantities of allowances allocated to affected units that are not new units on a pro-rata basis so that the quantities are equal to the applicable quantities determined under paragraph (3).
Allocation to new units
Methodology
The Administrator shall promulgate regulations to establish a methodology for allocating nitrogen oxide allowances to new units.
Quantity of nitrogen oxide allowances allocated
The Administrator shall determine the quantity of nitrogen oxide allowances to be allocated to each new unit based on the projected emissions from the new unit.
Allowance not a property right
A nitrogen oxide allowance—
is not a property right; and
may be terminated or limited by the Administrator.
No judicial review
An allocation of nitrogen allowances by the Administrator under this subsection shall not be subject to judicial review.
Nitrogen oxide allowance transfer system
Use of allowances
The regulations promulgated under subsection (a)(1) shall—
prohibit the use (but not the transfer in accordance with paragraph (3)) of any nitrogen oxide allowance before the calendar year for which the allowance is allocated;
provide that unused nitrogen oxide allowances may be carried forward and added to nitrogen oxide allowances allocated for subsequent years; and
provide that unused nitrogen oxide allowances may be transferred by—
the person to which the allowances are allocated; or
any person to which the allowances are transferred.
Use by persons to which allowances are transferred
Any person to which nitrogen oxide allowances are transferred under paragraph (1)(C)—
may use the nitrogen oxide allowances in the calendar year for which the nitrogen oxide allowances were allocated, or in a subsequent calendar year, to demonstrate compliance with subsection (e)(1); or
may transfer the nitrogen oxide allowances to any other person for the purpose of demonstration of that compliance.
Certification of transfer
A transfer of a nitrogen oxide allowance shall not take effect until a written certification of the transfer, authorized by a responsible official of the person making the transfer, is received and recorded by the Administrator.
Permit requirements
An allocation or transfer of nitrogen oxide allowances to an affected unit shall, after recording by the Administrator, be considered to be part of the federally enforceable permit of the affected unit under this Act, without a requirement for any further review or revision of the permit.
Compliance and enforcement
In general
For calendar year 2012 and each calendar year thereafter, the operator of each affected unit shall surrender to the Administrator a quantity of nitrogen oxide allowances that is equal to the total tons of nitrogen oxides emitted by the affected unit during the calendar year.
Monitoring system
The Administrator shall promulgate regulations requiring—
operation, reporting, and certification of continuous emissions monitoring systems to accurately measure the quantity of nitrogen oxides that is emitted from each affected unit; and
verification and reporting of nitrogen oxides emissions at each affected unit.
Reporting
In general
Not less often than quarterly, the owner or operator of an affected unit shall submit to the Administrator a report on the monitoring of emissions of nitrogen oxides carried out by the owner or operator in accordance with the regulations promulgated under paragraph (2).
Authorization
Each report submitted under subparagraph (A) shall be authorized by a responsible official of the affected unit, who shall certify the accuracy of the report.
Public reporting
The Administrator shall make available to the public, through 1 or more published reports and 1 or more forms of electronic media, data concerning the emissions of nitrogen oxides from each affected unit.
Excess emissions
In general
The owner or operator of an affected unit that emits nitrogen oxides in excess of the nitrogen oxide allowances that the owner or operator holds for use for the affected unit for the calendar year shall—
pay an excess emissions penalty determined under subparagraph (B); and
offset the excess emissions by at least an equal quantity in the following calendar year or such other period as the Administrator shall prescribe.
Determination of excess emissions penalty
The excess emissions penalty for nitrogen oxides shall be equal to the product obtained by multiplying—
the number of tons of nitrogen oxides emitted in excess of the total quantity of nitrogen oxide allowances held; and
2 times the average price of a nitrogen oxide allowance for the Zone and calendar year in which the excess emissions occurred, as determined by the Administrator.
Treatment of existing programs
In general
Except as provided in paragraph (2), the provisions of
the rule of the Administrator entitled the Clean Air Interstate
Rule
(70 Fed. Reg. 25162 (May 12, 2005)) (or a successor regulation)
providing for the establishment of an annual emissions cap and trading program
for oxides of nitrogen shall terminate on the later of—
the effective date of the regulations promulgated under this section; and
January 1, 2012.
Exception
Notwithstanding paragraph (1), any provision of the rule referred to in that paragraph (or a successor regulation) relating to the establishment of a seasonal ozone emission cap-and-trade program for nitrogen oxides shall remain in full force and effect.
Mercury program
Definition of inlet mercury
In this section, the term inlet mercury means the quantity of mercury found—
in the as-fired coal of an affected unit; or
for an affected unit using coal that is subjected to an advanced coal cleaning technology, in the as-mined coal of the affected unit.
Annual limitation for certain units
On an annual average calendar year basis with respect to inlet mercury, an affected unit that commences operation on or after the date of enactment of this title shall be subject to the less stringent emission limitation of—
90 percent capture of inlet mercury; or
an emission rate of 0.0060 lbs/GWh.
Annual limitation for existing units
An affected unit in operation on the date of enactment of this title shall be subject to the following emission limitations on an annual average calendar year basis with respect to inlet mercury:
Calendar years 2012 through 2014
For the period beginning on January 1, 2012, and ending on December 31, 2014, the less stringent limitation of—
60 percent capture of inlet mercury; and
an emission rate of 0.02 lbs/GWh.
Calendar year 2015 and thereafter
For calendar year 2015 and each calendar year thereafter, the less stringent limitation of—
90 percent capture of inlet mercury; and
an emission rate of 0.0060 lbs/GWh.
Averaging across units
An owner or operator of an affected unit may demonstrate compliance with the annual average limitations under subsections (b) and (c) by averaging emissions from all affected units at a single facility.
Monitoring system
The Administrator shall promulgate regulations requiring—
operation, reporting, and certification of continuous emissions monitoring systems to accurately measure the quantity of mercury that is emitted from each affected unit; and
verification and reporting of mercury emissions at each affected unit.
Reporting
In general
Not less often than quarterly, the owner or operator of an affected unit shall submit to the Administrator a report on the monitoring of emissions of mercury carried out by the owner or operator in accordance with the regulations promulgated under subsection (e).
Authorization
Each report submitted under paragraph (1) shall be authorized by a responsible official of the affected unit, who shall certify the accuracy of the report.
Public reporting
The Administrator shall make available to the public, through 1 or more published reports and 1 or more forms of electronic media, data concerning the emission of mercury from each affected unit.
Excess emissions
In general
The owner or operator of an affected unit that emits mercury in excess of the emission limitation described in subsection (b) or (c) shall pay an excess emissions penalty determined under paragraph (2).
Determination of excess emissions penalty
The excess emissions penalty for mercury shall be an amount equal to $50,000 for each pound of mercury emitted in excess of the emission limitation described in subsection (b) or (c), as pro-rated for each fraction of a pound.
Carbon dioxide allowance trading program
Definitions
In this section:
Allowance
The term allowance means—
a carbon dioxide allowance;
an offset allowance; or
an early reduction allowance.
Early reduction allowance
The term early reduction allowance means a carbon dioxide allowance issued under subsection (g) for a project in the United States to reduce emissions of greenhouse gases or to sequester greenhouse gases that is carried out in calendar years 2000 through 2012.
Offset allowance
The term offset allowance means a carbon dioxide allowance issued under subsection (e) for a project to reduce emissions of greenhouse gases or to sequester greenhouse gases.
Regulations
In general
Not later than 2 years after the date of enactment of this title, the Administrator shall promulgate regulations to establish an allowance trading program for covered units in the United States.
Requirements
Regulations promulgated under paragraph (1) shall establish requirements for the carbon dioxide allowance trading program under this section, including requirements concerning—
the allocation, issuance, and use of carbon dioxide allowances;
the reserve and allocation of carbon dioxide allowances for new units and new renewable energy units;
the issuance, certification, and use of offset allowances;
the issuance, certification, and use of early reduction allowances;
the transfer of allowances;
the monitoring, tracking, and reporting of carbon dioxide emissions;
compliance and enforcement; and
the public availability of carbon dioxide emissions information.
Interaction with Department of Agriculture
In general
Except as provided in subparagraph (B), the Administrator shall promulgate all regulations relating to offsets under this title.
Offsets
The Administrator shall promulgate regulations relating to offsets produced by agricultural sequestration practices in consultation with the Secretary of Agriculture.
New unit reserve
Establishment
For each calendar year, based on projections of electricity output from new units, the Administrator, in consultation with the Secretary of Energy, shall establish by regulation a reserve of carbon dioxide allowances to be allocated to new covered units for the calendar year.
Limitations
In general
The number of allowances allocated under paragraph (1) during a calendar year shall be not more than 2 percent of the total number of allowances allocated to covered units for the calendar year.
Requirement
Notwithstanding any other provision of this Act, no allowance shall be allocated to any coal-fired covered unit or any coal-fired new unit unless that covered unit or new unit—
is powered by a qualifying advanced clean coal technology (as defined pursuant to subsection (d)(2)); or
entered operation before January 1, 2007.
Unused allowances
For each calendar year, the Administrator shall reallocate, to all covered units, any unused carbon dioxide allowances from the new unit reserve established under paragraph (1) in the proportion that—
the number of allowances allocated to each covered unit for the calendar year; bears to
the number of allowances allocated to all covered units for the calendar year.
Incentives for clean coal technology
Establishment
The Administrator shall establish by regulation a reserve of carbon dioxide allowances to be set aside during a calendar year to encourage the deployment of clean coal technologies.
Defining qualifying advanced clean coal technologies
Definition of available technology
In this paragraph, the term available technology means any coal combustion technology that achieves an output-based emission rate of, as applicable—
1,100 pounds of carbon dioxide per megawatt-hour; and
0.0060 pounds of mercury per gigawatt-hour.
Criteria and standards
Not later than July 1, 2009, the Administrator shall
establish criteria and standards to define the term qualifying advanced
clean coal technology
with respect to electric power generation.
Requirement
In establishing criteria and standards under subparagraph (B), the Administrator shall ensure that the qualifying advanced clean coal technologies represent an advance in available technology, taking into consideration—
net thermal efficiency;
measures to capture and sequester carbon dioxide; and
output-based emission rates for—
carbon dioxide;
sulfur dioxide;
oxides of nitrogen;
filterable and condensable particulate matter; and
mercury.
Review and revision
In general
Not later than July 1, 2010, and each July 1 thereafter, the Administrator shall review and, if appropriate, revise the criteria and standards under subparagraph (B) based on technological advances during the preceding calendar year.
Notice and comment not required
Subject to clause (iii), after the initial criteria and standards are established under subparagraph (B), no subsequent review or revision under this subparagraph shall be subject to the notice and comment provisions of section 553 of title 5, United States Code.
Effect
Nothing in clause (ii) precludes the application of the notice and comment provisions of section 553 of title 5, United States Code, as the Administrator determines to be practicable.
Quantity and distribution of allowances
Quantity
The Administrator shall set aside by regulation an annual quantity of carbon dioxide allowances for qualifying advanced clean coal technologies equal to 3 percent of the annual tonnage limitation established under section 702(d) for the period beginning on January 1, 2012, and ending on December 31, 2025.
Distribution
In general
The Administrator shall establish by regulation a methodology for distributing the carbon dioxide allowances set aside under subparagraph (A) to encourage the deployment of advanced clean coal technologies.
Review and revision
In general
Not later than July 1, 2009, and each July 1 thereafter, the Administrator shall review and, if appropriate, revise the criteria and standards under clause (i) based on technological advances during the preceding calendar year.
Notice and comment not required
Subject to subclause (III), after the initial criteria and standards are established under clause (i), no subsequent review or revision under this subparagraph shall be subject to the notice and comment provisions of section 553 of title 5, United States Code.
Effect
Nothing in subclause (II) precludes the application of the notice and comment provisions of section 553 of title 5, United States Code, as the Administrator determines to be practicable.
Treatment of correspondence
The correspondence of the Office of Air Quality Planning and Standards addressing best available control technology requirements for proposed coal-fired power plant projects and dated December 13, 2005—
shall be considered to be inconsistent with section 169(3); and
shall be treated as void and of no effect as of the date of issuance of the correspondence.
Carbon dioxide allowance allocation to covered units that are not new units and clean coal technology reserve
Timing of allocations
The Administrator shall allocate carbon dioxide allowances to covered units that are not new units—
not later than December 31, 2008, for calendar year 2012; and
not later than December 31 of calendar year 2009 and each calendar year thereafter, for the fourth calendar year that begins after that December 31.
Allocations
In general
The Administrator shall allocate to each covered unit that is not a new unit a quantity of carbon dioxide allowances that is equal to the product obtained by multiplying—
the quantity of carbon dioxide allowances available for allocation under subparagraph (B); and
the quotient obtained by dividing—
the annual average quantity of electricity generated by the unit during the most recent 3-calendar year period for which data are available, updated each calendar year and measured in megawatt hours; and
the total of the average quantities described in subclause (I) with respect to all such units.
Quantity to be allocated
For each calendar year, the quantity of carbon dioxide allowances allocated under subparagraph (A) to covered units that are not new units shall be equal to the difference between—
the annual tonnage limitation for emissions of carbon dioxide from covered units specified in section 702(d) for the calendar year; and
the sum of—
the quantity of carbon dioxide allowances placed in the new unit reserve established under subsection (c) for the calendar year; and
the quantity of carbon dioxide allowances reserved to provide incentives for advanced clean coal technologies under subsection (d) for the calendar year.
Requirement
Notwithstanding any other provision of this title, no allowance shall be allocated to any coal-fired unit that was previously a new unit unless the unit—
is powered by a qualifying advanced clean coal technology (as defined pursuant to subsection (d)(2)); or
entered operation before January 1, 2007.
Offset allowances
Regulations
Regulations promulgated pursuant to subsection (b)(1) shall establish requirements for the issuance, certification, and use of offset allowances for greenhouse gas reduction or sequestration projects carried out in the United States or any other country, including requirements—
that projects not cause or contribute to adverse effects on human health or the environment;
that projects result in greenhouse gas reductions that are real, surplus, enforceable, verifiable, permanent, and not used more than once, as determined by the Administrator;
for methodology for calculating the carbon dioxide equivalent reductions attributable to projects;
for the monitoring, reporting, and verification of the greenhouse gas reductions from projects; and
for accounting principles used to quantify the greenhouse gas reductions of projects that require—
the consideration of all greenhouse gas impacts of a project;
the consistent application of accounting principles;
transparency;
to the maximum extent practicable, accuracy; and
the use of conservative assumptions in cases in which uncertainties require the use of assumptions.
State offset methods
In promulgating regulations pursuant to subsection (b)(1), the Administrator shall take into consideration offset methods developed, as of the date of enactment of this title, by the State of California or any other State pursuant to the Regional Greenhouse Gas Initiative or a similar regulatory program of comparable rigor, as determined by the Administrator.
Approved categories of offset projects
In general
Greenhouse gas reduction or sequestration projects from the following types of operations and projects shall be eligible to create offsets for use under this section:
Landfill operations.
Agricultural manure management projects.
Agricultural soil sequestration projects.
Forest based projects, including conservation-based forest management projects, reforestation projects, and conservation projects.
Reduction in emission of sulfur hexafluoride projects.
Energy efficiency projects.
Wastewater treatment facilities.
Coal mining operations.
Natural gas transmission and distribution systems.
Electrical transmission and distribution systems.
Fossil fuel combustion at commercial and residential buildings.
Protocols
Initial protocols
Not later than January 1, 2009, the Administrator shall develop specific offset protocols for at least a majority of the project types described in subparagraph (A), with priority given to project types with the greatest greenhouse gas reduction or sequestration potential, as determined by the Administrator.
Subsequent protocols
Not later than January 1, 2010, the Administrator shall develop a specific offset protocol for each project type for which a protocol was not developed under clause (i).
Creation of additional categories of greenhouse gas emissions reduction offset projects
In general
Subject to subparagraph (B), the Administrator, by regulation, may create additional categories of greenhouse gas emissions reduction or sequestration offset projects for types of projects for which the Administrator determines that compliance with the regulations promulgated pursuant to subsection (b)(1) is feasible.
Exclusions
Regulations promulgated pursuant to subparagraph (A) shall not include any greenhouse gas emission reduction or sequestration offset project (or type of project) that affects—
a motor vehicle (as defined in section 216);
a nonroad engine (as defined in section 216); or
a stationary source (as defined in section 302) that is not a covered unit.
Prohibition on use
Notwithstanding paragraphs (3) and (4), a greenhouse gas emissions reduction or sequestration offset project shall not be eligible to receive an offset credit for use under this section beginning on the date on which the reduction or sequestration achieved by the project is required by law (including regulations) or another legally binding requirement.
Early reduction allowances
In general
Not later than January 1, 2009, the Administrator shall promulgate regulations for the issuance, certification, and use of early reduction allowances for greenhouse gas reduction or sequestration projects carried out during calendar years 2000 through 2012.
Eligible projects
A greenhouse gas reduction or sequestration project shall be eligible for early reduction allowances if the project—
is carried out in the United States;
meets the regulations promulgated by the Administrator under paragraph (1) that the Administrator determines to be applicable to the project; and
was reported—
under section 1605(b) of the Energy Policy Act of 1992 (42 U.S.C. 13385(b));
under a voluntary climate change program of the Environmental Protection Agency, such as the Climate Leaders program; or
to a State or regional greenhouse gas registry.
Limitation
The quantity of early reduction allowances available for greenhouse gas reduction or sequestration projects in calendar years 2000 through 2012 shall not exceed 10 percent of the carbon dioxide emission tonnage limitation for calendar year 2012 under section 702(d).
Use and transfer of allowances
Use in other carbon dioxide allowance trading programs
In general
Allowances may be used in any other carbon dioxide allowance trading program that is approved by the Administrator for use of the allowances.
Monitoring
The Administrator shall review each transfer of an allowance into or out of the allowance trading program under this section.
Use before applicable calendar year
Allowances may not be used before the calendar year for which the allowance was allocated.
Transfer
In general
Notwithstanding paragraph (2), allowances may be transferred before the calendar year for which the allowances were allocated.
Limitation
The transfer of an allowance shall not take effect until receipt and recording by the Administrator of a written certification of the transfer, which is executed by an authorized official of the person making the transfer.
Use by persons to which carbon dioxide allowances are transferred
Any person to which carbon dioxide allowances are transferred under paragraph (3)(A) may use the carbon dioxide allowances in the calendar year for which the carbon dioxide allowances were allocated, or in a subsequent calendar year, to demonstrate compliance with subsection (i)(1).
Permit requirements
An allocation or transfer of allowances to a covered unit shall be considered to be part of the federally enforceable permit of the covered unit under this Act, without a requirement for further review or revision of the permit.
Compliance and enforcement
In general
For the period of calendar years 2012 and 2013, and for each 2-calendar-year period thereafter, the owner of each covered unit shall surrender to the Administrator a quantity of allowances that is equal to the total tons of carbon dioxide emitted by the covered unit during the 2-calendar-year period.
Excess emissions
In general
The owner or operator of a covered unit that emits carbon dioxide in excess of the allowances that the owner or operator holds for use for the covered unit for the 2-calendar-year period shall—
pay an excess emissions penalty determined under subparagraph (B); and
offset the excess emissions by at least an equal quantity in the following 2-calendar-year period or such other period as the Administrator shall prescribe.
Determination of excess emissions penalty
The excess emissions penalty for carbon dioxide shall be equal to the product obtained by multiplying—
the number of tons of carbon dioxide emitted in excess of the total quantity of allowances held; and
2 times the average price of a carbon dioxide allowance for the 2-calendar-year period in which the excess emissions occurred, as determined by the Administrator.
Monitoring system
The Administrator shall promulgate regulations requiring—
operation, reporting, and certification of continuous emissions monitoring systems to accurately measure the quantity of carbon dioxide that is emitted from each covered unit; and
verification and reporting of carbon dioxide emissions at each covered unit.
Reporting
In general
Not less often than quarterly, the owner or operator of a covered unit shall submit to the Administrator a report on the monitoring of emissions of carbon dioxide carried out by the owner or operator in accordance with the regulations promulgated under paragraph (3).
Authorization
Each report submitted under subparagraph (A) shall be authorized by a responsible official of the covered unit, who shall certify the accuracy of the report.
Public reporting
The Administrator shall make available to the public, through 1 or more published reports and 1 or more forms of electronic media, data concerning the emission of carbon dioxide from each covered unit.
Allowance not a property right
An allowance—
is not a property right; and
may be terminated or limited by the Administrator.
No judicial review
An allocation or issuance of an allowance by the Administrator shall not be subject to judicial review.
Distribution of allowances between auctions and allocations; nature of allowances
Distribution of allowances between auctions and allocations
In general
For each calendar year, the total quantity of allowances to be auctioned and allocated under this title shall be equal to the annual tonnage limitation for emissions of greenhouse gases from affected units specified in section 702 for the calendar year.
Distribution
The proportion of allowances to be auctioned pursuant to section 707 and allocated pursuant to section 705 for each calendar year beginning in calendar year 2012 shall be as follows:
| Calendar year | Percentage to be auctioned | Percentage to be allocated |
| 2012 | 18 | 82 |
| 2013 | 21 | 79 |
| 2014 | 24 | 76 |
| 2015 | 27 | 73 |
| 2016 | 30 | 70 |
| 2017 | 33 | 67 |
| 2018 | 36 | 64 |
| 2019 | 39 | 61 |
| 2020 | 42 | 58 |
| 2021 | 45 | 55 |
| 2022 | 48 | 52 |
| 2023 | 51 | 49 |
| 2024 | 54 | 46 |
| 2025 | 57 | 43 |
| 2026 | 60 | 40 |
| 2027 | 63 | 37 |
| 2028 | 66 | 34 |
| 2029 | 69 | 41 |
| 2030 | 72 | 28 |
| 2031 | 75 | 25 |
| 2032 | 80 | 20 |
| 2033 | 85 | 15 |
| 2034 | 90 | 10 |
| 2035 | 95 | 5 |
| 2036 and thereafter | 100 | 0 |
Nature of allowances
An allowance—
shall not be considered to be a property right; and
may be terminated or limited by the Administrator.
No judicial review
An auction or allocation of an allowance by the Administrator shall not be subject to judicial review.
Auction of allowances
In general
Not later than 2 years after the date of enactment of this title, the Administrator shall promulgate regulations establishing a procedure for the auction of the quantity of allowances specified in section 706(a) for each calendar year.
Deposit of proceeds
The Administrator shall deposit all proceeds from auctions conducted under this section in the Fund for use in accordance with section 708.
Climate Action Trust Fund
Establishment and administration
In general
There is established in the general fund of the Treasury a fund, to be known as the Climate Action Trust Fund, consisting of—
such amounts as are deposited in the Fund under paragraph (2); and
any interest earned on investment of amounts in the Fund under paragraph (4).
Transfers to Fund
The Secretary of the Treasury shall deposit in the Fund amounts equivalent to the proceeds received by the Administrator as a result of the conduct of auctions of allowances under section 707.
Expenditures from Fund
In general
Subject to subparagraph (B), the Administrator shall use amounts in the Fund to carry out the programs described in this section.
Administrative expenses
Of amounts in the Fund, there shall be made available to pay the administrative expenses necessary to carry out this title, as adjusted for changes beginning on January 1, 2007, in accordance with the Consumer Price Index for All-Urban Consumers published by the Department of Labor—
$90,000,000 for each fiscal year, to the Administrator; and
$30,000,000 for each fiscal year, to the Secretary of Agriculture.
Investment of amounts
In general
The Secretary of Treasury shall invest such portion of the Fund as is not, in the judgment of the Administrator, required to meet current withdrawals.
Interest-bearing obligations
Investments may be made only in interest-bearing obligations of the United States.
Acquisition of obligations
For the purpose of investments under paragraph (1), obligations may be acquired—
on original issue at the issue price; or
by purchase of outstanding obligations at the market price.
Sale of obligations
Any obligation acquired by the Fund may be sold by the Administrator at the market price.
Return of proceeds to Fund
The interest on, and the proceeds from the sale or redemption of, any obligations held in the Fund shall be credited to, and form a part of, the Fund.
Regulations
Not later than 2 years after the date of enactment of this title, the Administrator, in consultation with the Secretary of Energy and the Secretary of Agriculture, shall promulgate such regulations as are necessary to administer the Fund in accordance with this section.
Uses of Fund
No further appropriation
The Administrator shall distribute amounts in the Fund for use in accordance with this section, without further appropriation.
Regulations
In general
Not later than 3 years after the date of enactment of this title, the Administrator, in consultation with the Secretary of Energy and the Secretary of Agriculture, shall promulgate regulations establishing an innovative low- and zero-emitting carbon technologies program, a clean coal technologies program, a research and analysis program, and an energy efficiency technology program that include—
the funding mechanisms that will be available to support the development and deployment of the technologies addressed by each program, including low-interest loans, loan guarantees, grants, and financial awards; and
the criteria for the methods by which proposals will be funded to develop and deploy the technologies.
Revision of criteria
Not later than January 1, 2014, and every 3 years thereafter, the Administrator shall review and, if appropriate, revise, based on technological advances, the criteria referred to in subparagraph (A)(ii).
Adaptation assistance for workers and communities
Not later than 3 years after the date of enactment of this title, the Administrator, in consultation with the Secretary of Energy, shall promulgate regulations governing the distribution of funds pursuant to subsection (g).
Progress reports
Not later than January 1, 2015, and every 5 years thereafter, the Administrator shall prepare and submit to the President and Congress a report containing an evaluation of the effectiveness of the distribution of funds under this section.
Innovative low- and zero-emitting carbon electricity generation technologies program
In general
For each calendar year, of amounts remaining in the Fund after making the expenditures described in subsection (a)(3)(B), the Administrator shall use not more than 35 percent to support the development and deployment of low- and zero-emitting carbon electricity generation technologies.
Regulations
The regulations establishing the innovative low- and zero-emitting carbon electricity generation technologies program referred to in subsection (b)(2)(A) shall establish the areas of technology development that will qualify for funding under that program, including technologies for the generation of electricity from renewable energy sources.
Clean coal technologies program
In general
For each calendar year, of amounts remaining in the Fund after making the expenditures described in subsection (a)(3)(B), the Administrator shall use not more than 20 percent to support the development and deployment of clean coal technologies.
Regulations
The criteria and standards established
pursuant to section 705(d)(2) to define the term clean coal
technology
shall establish criteria for use of a technology in the
clean coal technologies program under subsection (b)(2)(A).
Energy efficiency technology program
In general
For each calendar year, of amounts remaining in the Fund after making the expenditures described in subsection (a)(3)(B), the Administrator shall use not more than 15 percent to support the development and deployment of technologies for increasing the efficiency of energy end use in buildings and industry.
Regulations
The regulations establishing the energy efficiency program referred to in subsection (b)(2)(A) shall establish the areas of technology development that will qualify for funding under the energy efficiency program.
Federal funding of research into and development of energy and efficiency technologies, carbon lifecycle analysis, and agricultural practices
For each calendar year, the Administrator shall use not more than 10 percent of the amounts in the Fund to support research into and development of—
energy and efficiency technologies;
carbon lifecycle analyses of energy generation technologies and practices; and
agricultural practices that sequester or reduce atmospheric greenhouse gases.
Adaptation assistance for workers and communities negatively affected by climate change and greenhouse gas regulation
For each calendar year, of amounts remaining in the Fund after making the expenditures described in subsection (a)(3)(B), the Administrator shall use at least 10 percent to provide adaptation assistance for workers and communities—
to address local or regional impacts of climate change and the impacts, if any, from greenhouse gas regulation, including by providing assistance to displaced workers and disproportionately affected communities; and
to mitigate impacts of climate change and the impacts, if any, from greenhouse gas regulation on low-income energy consumers.
Fish and wildlife habitat
In general
For each calendar year, of amounts remaining in the Fund after making the expenditures described in subsection (a)(3)(B), the Administrator shall use at least 10 percent to mitigate the impacts of climate change on fish and wildlife habitat in accordance with this subsection.
Wildlife restoration fund
In general
For each calendar year, the Administrator shall transfer not less than 70 percent of the amounts made available under paragraph (1) to the Federal aid to wildlife restoration fund established under section 3(a)(1) of the Pittman-Robertson Wildlife Restoration Act (16 U.S.C. 669b(a)(1))—
to carry out climate change impact mitigation actions pursuant to comprehensive wildlife conservation strategies; and
to provide relevant information, training, monitoring, and other assistance to develop climate change impact mitigation and adaptation plans and integrate the plans into State comprehensive wildlife conservation strategies.
Availability
Amounts transferred to the Federal aid to wildlife restoration fund under this paragraph shall—
be available, without further appropriation, for obligation and expenditure; and
remain available until expended.
Protection of natural resources
In general
For each calendar year, the Administrator, in consultation with the Secretary of Agriculture, the Secretary of Commerce, the Chief of Engineers, and State and national wildlife conservation organizations, shall transfer not more than 30 percent of the funds made available under paragraph (1) to the Secretary of the Interior for use in carrying out Federal and State programs and projects—
to protect natural communities that are most vulnerable to climate change;
to restore and protect natural resources that directly guard against damages from climate change events; and
to restore and protect ecosystem services that are most vulnerable to climate change.
Administration
Amounts transferred to the Secretary of the Interior under this paragraph shall—
be available, without further appropriation, for obligation and expenditure;
remain available until expended;
be obligated not later than 2 years after the date of transfer; or
if the amounts are not obligated in accordance with subclause (I), be transferred to the Federal aid to wildlife restoration fund for use in accordance with paragraph (2); and
supplement, and not supplant, the amount of Federal, State, and local funds otherwise expended to carry out programs and projects described in subparagraph (A).
Programs and projects
Programs and projects for which funds may be used under this paragraph include—
Federal programs and projects—
to identify Federal land and water at greatest risk of being damaged or depleted by climate change;
to monitor Federal land and water to allow for early detection of impacts;
to develop adaptation strategies to minimize the damage; and
to restore and protect Federal land and water at the greatest risk of being damaged or depleted by climate change;
Federal programs and projects to identify climate change risks and develop adaptation strategies for natural grassland, wetlands, migratory corridors, and other habitats vulnerable to climate change on private land enrolled in—
the wetlands reserve program established under subchapter C of chapter 1 of subtitle D of title XII of the Food Security Act of 1985 (16 U.S.C. 3837 et seq.);
the grassland reserve program established under subchapter C of chapter 2 of subtitle D of title XII of that Act (16 U.S.C. 3838n et seq.); and
the wildlife habitat incentive program established under section 1240N of that Act (16 U.S.C. 3839bb–1);
programs and projects under the North American Wetlands Conservation Act (16 U.S.C. 4401 et seq.), the North American Bird Conservation Initiative, and the Neotropical Migratory Bird Conservation Act (16 U.S.C. 6101 et seq.) to protect habitat for migratory birds that are vulnerable to climate change impacts;
programs and projects—
to identify coastal and marine resources (such as coastal wetlands, coral reefs, submerged aquatic vegetation, shellfish beds, and other coastal or marine ecosystems) at the greatest risk of being damaged by climate change;
to monitor those resources to allow for early detection of impacts;
to develop adaptation strategies;
to protect and restore those resources; and
to integrate climate change adaptation
requirements into State plans developed under the coastal zone management
program established under the Coastal Zone Management Act of 1972 (16 U.S.C.
1451 et seq.), the national estuary program established under section 320 of
the Federal Water Pollution Control Act (33 U.S.C. 1330), the Coastal and
Estuarine Land Conservation Program established under the fourth proviso of the
matter under the heading procurement, acquisition, and construction (including transfers of
funds)
of title II of the Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations Act,
2002 (16 U.S.C. 1456d), or other comparable State programs;
programs and projects to conserve habitat for endangered species and species of conservation concern that are vulnerable to the impact of climate change;
programs and projects under the Forest Legacy Program established under section 7 of the Cooperative Forestry Assistance Act (16 U.S.C. 2103c), to support State efforts to protect environmentally sensitive forest land through conservation easements to provide refuges for wildlife;
other Federal or State programs and projects identified by the heads of agencies described in subparagraph (A) as high priorities—
to protect natural communities that are most vulnerable to climate change;
to restore and protect natural resources that directly guard against damages from climate change events; and
to restore and protect ecosystem services that are most vulnerable to climate change;
to address climate change in Federal land use planning and plan implementation and to integrate climate change adaptation strategies into—
comprehensive conservation plans prepared under section 4(e) of the National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd(e));
general management plans for units of the National Park System;
resource management plans of the Bureau of Land Management; and
land and resource management plans under the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1600 et seq.) and the National Forest Management Act of 1976 (16 U.S.C. 1600 et seq.); and
projects to promote sharing of information on climate change wildlife impacts and mitigation strategies across agencies, including funding efforts to strengthen and restore habitat that improves the ability of fish and wildlife to adapt successfully to climate change through the Wildlife Conservation and Restoration Account established by section 3(a)(2) of the Pittman-Robertson Wildlife Restoration Act (16 U.S.C. 669b(a)(2)).
.
New source review program
Section 165 of the Clean Air Act (42 U.S.C. 7475) is amended by adding at the end the following:
Revisions to new source review program
Definitions
In this subsection:
Affected unit
The term affected unit has the meaning given the term in section 701.
New source review program
The term new source review program means the program to carry out this part and part D.
Performance standards
In general
Except as provided in subparagraph (B), beginning January 1, 2020, and on each January 1 thereafter, each affected unit that has been in operation 40 or more years as of that January 1, and that operates for more than 500 hours per calendar year, shall meet performance standards of—
2 lbs/MWh for sulfur dioxide; and
1 lbs/MWh for nitrogen oxides.
Exception
In general
Notwithstanding subparagraph (A), an affected unit that, as of January 1, 2020, is required to meet a more stringent performance standard than the applicable standard under subparagraph (A) shall continue to meet the more stringent standard.
Modification of affected units
The requirements of this section shall not affect in any way any requirement under section 111(a)(4), this part, or part D governing modifications of major stationary sources.
No effect on other requirements and retention of State authority
Nothing in this subsection affects—
any State authority under section 116; or
the obligation of any State or local government or any major emitting facility to comply with the requirements of this section.
.
Revisions to sulfur dioxide allowance program
In general
Title IV of the Clean Air Act (relating to acid deposition control) (42 U.S.C. 7651 et seq.) is amended by adding at the end the following:
Revisions to sulfur dioxide allowance program
Definitions
In this section, the terms affected unit and new unit have the meanings given the terms in section 701.
Regulations
Not later than January 1, 2008, the Administrator shall promulgate such revisions to the regulations to implement this title as the Administrator determines to be necessary to implement section 702(a).
New unit reserve
Establishment
Subject to the annual tonnage limitation for emissions of sulfur dioxide from affected units specified in section 702(a), the Administrator shall establish by regulation a reserve of allowances to be set aside for use by new units.
Determination of quantity
The Administrator, in consultation with the Secretary of Energy, shall determine, based on projections of electricity output for new units—
not later than June 30, 2008, the quantity of allowances required to be held in reserve for new units for each of calendar years 2012 through 2014; and
not later than June 30 of each fifth calendar year thereafter, the quantity of allowances required to be held in reserve for new units for the following 5-calendar year period.
Allocation
Regulations
The Administrator shall promulgate regulations to establish a methodology for allocating allowances to new units.
No judicial review
An allocation of allowances by the Administrator under this subsection shall not be subject to judicial review.
Existing units
Allocation
Regulations
Subject to the annual tonnage limitation for emissions of sulfur dioxide from affected units specified in section 702(a), and subject to the reserve of allowances for new units under subsection (c), the Administrator shall promulgate regulations to govern the allocation of allowances to affected units that are not new units.
Required elements
The regulations shall provide for—
the allocation of allowances on a fair and equitable basis between affected units that received allowances under section 405 and affected units that are not new units and that did not receive allowances under that section, using for both categories of units the same or similar allocation methodology as was used under section 405; and
the pro-rata distribution of allowances to all units described in clause (i), subject to the annual tonnage limitation for emissions of sulfur dioxide from affected units specified in section 702(a).
Timing of allocations
The Administrator shall allocate allowances to affected units—
not later than December 31, 2007, for calendar years 2010 and 2011; and
not later than December 31 of calendar year 2008 and each calendar year thereafter, for the fourth calendar year that begins after that December 31.
No judicial review
An allocation of allowances by the Administrator under this subsection shall not be subject to judicial review.
.
Definition of allowance
Section 402 of the Clean Air Act (relating to acid deposition control) (42 U.S.C. 7651a) is amended by striking paragraph (3) and inserting the following:
Allowance
The term allowance means an authorization, allocated by the Administrator to an affected unit under this title, to emit, during or after a specified calendar year, a quantity of sulfur dioxide determined by the Administrator and specified in the regulations promulgated under section 417(b).
.
Excess emissions
Section 411 of the Clean Air Act (relating to acid deposition control) (42 U.S.C. 7651j) is amended by striking subsections (a) and (b) and inserting the following:
In general
The owner or operator of a new unit or an affected unit that emits sulfur dioxide in excess of the sulfur dioxide allowances that the owner or operator holds for use for the new unit or affected unit for the calendar year shall—
pay an excess emissions penalty determined under subsection (b); and
offset the excess emissions by at least an equal quantity in the following calendar year or such other period as the Administrator shall prescribe.
Determination of excess emissions penalty
In general
The excess emissions penalty for sulfur dioxide shall be equal to the product obtained by multiplying—
the quantity of sulfur dioxide emitted in excess of the total quantity of sulfur dioxide allowances held; and
2 times the average price of a sulfur dioxide allowance for the calendar year in which the excess emissions occurred, as determined by the Administrator.
Treatment
An excess emissions penalty under paragraph (1)—
shall be due and payable without demand to the Administrator, in accordance with applicable regulations promulgated by the Administrator, by not later than 18 months after the date of enactment of the Clean Air Planning Act of 2007; and
shall not diminish the liability of the owner or operator of the affected unit with respect to any fine, penalty, or assessment applicable to the affected unit for the same violation under any other provision of this Act.
.
Technical amendments
Title IV of the Clean Air Act (relating to noise pollution) (42 U.S.C. 7641 et seq.)—
is amended by redesignating sections 401 through 403 as sections 801 through 803, respectively; and
is redesignated as title VIII and moved to appear at the end of that Act.
The table of contents for title IV of the Clean Air Act (relating to acid deposition control) (42 U.S.C. prec. 7651) is amended by adding at the end the following:
Sec. 417. Revisions to sulfur dioxide allowance program.
.
Environmental Protection Agency program to reduce carbon dioxide from new coal-fired electric generating units
Section 111 of the Clean Air Act (42 U.S.C. 7411) is amended by adding at the end the following:
Standards of performance for new electric generating units
Standard of performance
In general
Each covered unit that commences operation on or after January 1, 2015, shall meet the following standards of performance:
For each of calendar years 2015 through 2025, an emission limitation of 1,100 pounds of carbon dioxide per megawatt-hour or less.
For calendar year 2025 and each calendar year thereafter, an emission limitation of 285 pounds of carbon dioxide per megawatt-hour or less.
Review and revision
In general
Not later than January 1, 2015, and every 5 years thereafter, the Administrator shall complete a review of the standard of performance under subparagraph (A) (or a modified standard, if applicable) to determine whether the standard requires revision, based on the best available technological system of continuous emission reduction on the date on which the review is conducted.
Publication
The Administrator shall publish each determination under clause (i) not later than the deadline for the determination under that clause.
Treatment
A determination of the Administrator under clause (i) shall be considered to be a final agency action for purposes of section 307(b)(1).
Treatment of certain carbon dioxide
Carbon dioxide that is injected into a geological formation in a manner that prevents any release of the carbon dioxide into the atmosphere shall not be considered to be a carbon dioxide emission from an electric generating unit for purposes of meeting an applicable standard under paragraph (1).
.
Relationship to other law
Regulation of hazardous air pollutants
Section 112(n)(1) of the Clean Air Act (42 U.S.C. 7412(n)(1)) is amended by striking subparagraph (A) and inserting the following:
Regulations
In general
Not later than 18 months after the date of enactment of the Clean Air Planning Act of 2007, the Administrator shall promulgate regulations under this section limiting the emission from electric utility steam generating units of hazardous air pollutants, other than mercury, as the Administrator determines to be appropriate and necessary in accordance with the standards under this section, including subsections (b)(2) and (f).
Requirements
The regulations under clause (i) shall—
require compliance with applicable standards as expeditiously as practicable, but not later than 3 years after the effective date of the regulations; and
be in accordance with other applicable requirements under this section.
Effective date
The regulations under clause (i) shall be effective on the date of promulgation of the regulations.
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No effect on other Federal and State requirements
Except as otherwise specifically provided in this Act, nothing in this Act or an amendment made by this Act—
affects any permitting, monitoring, or enforcement obligation of the Administrator of the Environmental Protection Agency under the Clean Air Act (42 U.S.C. 7401 et seq.) or any remedy provided under that Act;
affects any requirement applicable to, or liability of, an electric generating facility under that Act;
requires a change in, affects, or limits any State law that regulates electric utility rates or charges, including prudence review under State law; or
precludes a State or political subdivision of a State from adopting and enforcing any requirement for the control or abatement of air pollution, except that a State or political subdivision may not adopt or enforce any emission standard or limitation that is less stringent than the requirements imposed under that Act.