What makes an old power plant new again? It is a complicated question, possibly deeply philosophic and suggestive of a zen koan. Perhaps the answer is that there is no answer. Unfortunately, that answer isn’t good enough for public policy.
The Clean Air Act requires new generators to get permits, and even old generators need permits if they are expanded. For existing generators the distinction between old and new comes down to the dividing line between “routine maintenance” and “major modifications.” For years old power plants have been kept in service through generous helpings of what utilities have described as “routine maintenance,” perhaps at the expense of replacing the old generators with new, less polluting units. The Environmental Protection Agency has been arguing with utilities in the Courts about the dividing line; one such case is heading to the Supreme Court. Tracey Davis, on the Energy Legal Blog, notes that a similar case was the subject of Judge Richard Posner’s decision in August:
The Seventh Circuit in Cinergy sided with the EPA, reasoning that Cinergy’s interpretation of the NSR provisions would give utilities an “artificial incentive” to renovate a power plant and continue using it beyond its expected lifespan, rather than replacing it with a more environmentally friendly plant. According to Judge Posner, that incentive conflicted with the intent of the Clean Air Act.