Editor’s Note: For a more recent analysis of the judicial reviewability of the DQA with respect to EPA’s carbon capture and storage plans, see here.
From: The Florida Bar Out-of-State Division | State-to-State (Summer 2014)
by H. Brendan Burke
On Jan. 8, 2014, the U.S. Environmental Protection Agency (EPA) issued a proposed new source performance standard (NSPS) under the Clean Air Act1 for carbon dioxide (CO2) emissions from new or modified electric utility plants that will effectively require implementation of a process known as carbon capture and sequestration (CCS).2 EPA offers the following explanation of this technology:
On Feb. 3, 2014, the Center for Regulatory Effectiveness (CRE) sent a letter to the EPA administrator alleging that the proposed rule violates the Information Quality Act6 (IQA) in that it is based on scientific studies that were not peer-reviewed as required by the Office of Management and Budget (OMB)’s regulations implementing the IQA.7
Since its passage in 2000, the IQA has been criticized as a tool for corporate interests to suppress unfavorable government reports and actions.8 In this case, the issue turns on whether the studies cited in the proposed NSPS rule qualify as a “Highly Influential Scientific Assessment” (HISA) within the meaning of the OMB’s regulations, thereby triggering enhanced peer review requirements.9
This article will introduce the reader to the IQA and explain competing views as to the extent to which the IQA is legally binding. The article will further analyze whether the science the EPA used to develop the CCS rule is, in fact, a HISA, and to what extent the IQA may or may not apply.