Rebutting Critics, EPA Touts ‘Traditional’ Focus In Power Plant GHG Rule

April 29, 2024

EPA is arguing its just-released power plant greenhouse gas standards comply with the Supreme Court’s direction in West Virginia v. EPA to focus on “traditional” pollution controls, though critics say the rule’s reliance on carbon capture and storage (CCS) effectively makes it a re-run of the Obama-era Clean Power Plan (CPP) that the high court struck down in 2022.

The debate about the rule’s adherence to the court’s West Virginia decision -- which barred standards based on shifting generation from coal to cleaner options like renewables or natural gas -- will be central to litigation over the April 25 standards.

CCS is a “traditional, add-on emissions control … fully consistent with the Supreme Court’s interpretation of the EPA’s authority in West Virginia,” EPA writes in the rule.

In vacating the CPP’s generation shifting-based standards, EPA says the high court decision also reaffirmed its ability to use “more traditional air pollution control measures,” such as “fuel-switching” and “add-on controls” to develop Clean Air Act section 111 rules. The new rule exactly follows this direction, EPA argues.

But opponents of the measure assert it is a thinly veiled copy of the CPP, with Republicans in Congress frequently dubbing the standards “Clean Power Plan 2.0.”

Michelle Bloodworth, president of America’s Power, a coalition of industries involved in producing coal-fired electricity, similarly declares the “new Clean Power Plan is the same kind of overreach that caused the U.S. Supreme Court to reject EPA’s first Clean Power Plan in 2022.”

EPA says the rule’s CCS-based standards are fundamentally different from the CPP’s limits, which relied on actions from throughout the supply side of the power sector.

“CCS is not directed at improvement of the overall power system. Rather, CCS is a traditional ‘add-on [pollution] control’ akin to measures that” EPA used as the basis for other section 111 rules, EPA writes. CCS also focuses on the performance of an individual source, as the Supreme Court endorsed in West Virginia.

But many power sector groups argue CCS is far more complex than a traditional bolt-on pollution control. “Carbon capture isn’t like an end-of-pipe technology that you just slap on a plant, and then you say, ‘We’re done,’” says Doug Benevento, the acting EPA deputy administrator during the Trump administration, in an interview with Inside EPA.

While it’s true that “you do need to do some physical work at the plant,” using CCS to comply with the rule also involves carbon transport and storage. That requires a pipeline as well as “legal infrastructure” helping interpret issues such as post-injection liabilities and ownership, says Benevento, now a lawyer with Holland and Hart.

“Neither that legal infrastructure, nor the physical infrastructure, [is] in place,” Benevento argues. “So, it’s … significantly different than” add-on controls such as scrubbers.

Benevento charges that the availability of carbon transport and storage depends on various factors “outside of control of the of the utilities that are going to have to comply with this,” even if it is possible to implement carbon capture technology at the plant itself.

End-Of-The-Pipe Control

Environmentalists have sought to draw an analogy between CCS and scrubbers, which they say were at a similarly early stage when EPA premised standards on that technology for a separate category of plants in the 1970s.

CCS is “just an end-of-the-pipe control that will take greenhouse gases out of the power plant,” that “functions very similar to say, scrubbers,” said Meredith Hankins, senior attorney at the Natural Resources Defense Council (NRDC), during a March event.

In West Virginia, she said, the Supreme Court required EPA to regulate power plant GHGs via “inside-the-fenceline” technologies. “That’s exactly what EPA has done here.”

In the rule’s provisions addressing coal plants, EPA offers a detailed rebuttal of stakeholders’ concerns that CCS-based standards are invalid under West Virginia.

As summarized in the rule, some commenters argued that EPA’s strict standards will force utilities to retire their coal-fired power plants. That will effectively result in the same generation-shifting from coal to renewables that EPA more directly required in the CPP, they say.

EPA “ignored the basic fact that there is no adequate replacement ready to replace the sorely needed, dispatchable generating capacity coal provides once it is shuttered,” argued Rich Nolan, president of the National Mining Association, in a statement. “We’ve seen this unlawful regulatory playbook before, challenged it and the Supreme Court agreed with our take; we will do so again and expect the same outcome.”

But EPA says its power sector models show “the primary cause for the projected retirements is the marginal profitability of the sources,” rather than the rule’s requirements.

As more gas-fired and renewable generation comes online, and as coal-fired plants continue to age, coal plants will “become increasingly marginal and continue to retire” -- even without the EPA GHG standards.

Therefore, taken in this context, “the projected impacts of this rule on coal-fired generating units do not raise [major questions doctrine] concerns,” EPA writes, referring to the doctrine the high court used in West Virginia that subjected the CPP to higher scrutiny because that rule was considered transformative.

EPA adds: “The projected impacts are merely incidental to the CCS control itself -- the unremarkable consequence of marginally increasing the cost of doing business in a competitive market.”

Under the major questions doctrine, agencies need clear statutory authority for policies that have significant political or economic effects -- a doctrine that Republican-led states and many industry groups are now raising against myriad Biden administration policies.

Also, EPA flags that West Virginia recognized that a Clean Air Act rule based on traditional measures “may end up causing an incidental loss of coal’s market share.”

The court’s decision concluded there is an “obvious difference” between that scenario and the CPP. That rule’s “generation-shifting” standards were “simply announcing what the market share of coal, natural gas, wind, and solar must be, and then requiring plants to reduce operations or subsidize their competitors to get there.” -- Abigail Mihaly ( & Sam Hess (