The Environmental Protection Agency proposed a rule Thursday that would limit climate-changing pollution from U.S. power plants for the first time, requiring coal- and gas-burning stations that generate most of the country’s electricity to either eliminate virtually all emissions over the next 17 years or close down.
Months after President Joe Biden signed historic laws dangling billions in federal-dollar carrots for electric vehicles and zero-carbon energy, his administration is brandishing sticks with a series of regulations meant to hasten the shift away from methane gas, oil and coal by tightening rules on pipeline leaks, climate-wrecking refrigerant chemicals, and tailpipe emissions.
The power plant rule is the most anticipated yet. The proposal faces months of public comment and debate, and will likely trigger lawsuits from Republican attorneys general in states that successfully blocked the federal government’s most recent attempt at limiting electric utilities’ greenhouse gasses.
If implemented, the rule would transform a power sector that burns fossil fuels to generate 60% of the nation’s electricity, producing one-quarter of the U.S. emissions. Eliminating carbon from transportation and buildings, the other two largest sources of greenhouse gasses, requires using a lot more electricity to power automobiles, cooking and heating. If that power isn’t coming from zero-carbon sources, then electrification just shifts emissions from one sector to another.
“When President Biden took office, he launched the most ambitious climate agenda in United States history, because in every corner of our nation Americans are seeing and feeling the devastating impacts of climate change,” EPA Administrator Michael Regan said in a speech Thursday morning at the University of Maryland.
Any coal plants planning to still operate past 2039 will need to capture 90% of emissions by 2035 using technology that filters carbon dioxide out of smokestacks before the gas enters the atmosphere. Of nearly two dozen U.S. facilities listed by the Global CCS Institute as operating carbon-capture technology today, not one is a coal-fired power plant.
Large, frequently operating and new gas plants will have the option to use either carbon-capture technology or replace a portion of natural gas with low-carbon hydrogen fuel. The rule loosens requirements for gas-burning “peaker” plants to wait on standby and only switch on when demand from the grid eclipses supply — a particular need in regions with a higher percentage of wind and solar power, which ebbs and flows with the weather.
Power stations that cannot meet those requirements have the option to shut down early.
Carbon capture and hydrogen are not new technologies, nor are they resoundingly supported. Some environmentalists blast carbon capture as a “false solution” meant to stave off bans on fossil fuels, arguing that nothing in the large suite of technologies the term describes can affordably eliminate emissions from the burning of oil, gas or coal. Critics also lament the need for thousands of miles of new pipelines to ship captured carbon dioxide to storage wells, which a recent leak in a Mississippi town showed can have serious health effects.
“Carbon capture is nothing more than a fossil fuel industry propaganda scheme,” Wenonah Hauter, the executive director of the left-wing Food & Water Watch, said in a statement. “Billions of dollars have been wasted trying to prove that this technology is real – and all we have to show for it are a series of spectacular failures. Throwing good money after bad is not a climate solution – it’s an industry bailout.”
Holly Jean Buck, a University at Buffalo professor and the author of the book “Ending Fossil Fuels,” said that claiming that carbon capture doesn’t work is an “industry talking point” coming from companies that, despite public statement supporting the technology, “don’t want to pay to install” it.
Researchers who study carbon capture say it’s effective and poised to go mainstream thanks to new federal subsidies in the Inflation Reduction Act, Biden’s signature climate law. Since the U.S. produced the largest share of the cumulative carbon emissions in the atmosphere over the past two centuries, supporters of carbon capture have said the country has a unique responsibility to develop technologies that coal and gas plants in Vietnam, Jamaica or Tanzania can ultimately use.
Hydrogen produces water when burned, but the vast majority of the fuel used today comes from a process that requires large amounts of fossil fuels. The new federal climate law also includes billions for generating hydrogen from carbon-free electricity or plants using carbon capture.
“We don’t have to choose between a green economy and a growing one,” Maryland Gov. Wes Moore (D) said in a speech before Regan. “We can and will have both.”
The rule marks the first real attempt to cut emissions from U.S. power plants since the Supreme Court temporarily blocked the Barack Obama administration’s Clean Power Plan in 2016, ruling in favor of a coalition of Republican states that challenged the legal justification for a key portion of the regulation.
The Obama EPA interpreted a hotly debated clause of the Clean Air Act to mean power plant owners could offset emissions from a fossil fuel plant in one location by building more renewables at another site. The plan was intended to give utilities more options to comply with the rule. Instead, it opened the door to lawsuits from opponents who argued the bedrock 1970 law limited federal regulators’ authority to dictating only solutions that could be applied “within the fence line” of an individual power plant.
Before the Obama administration could resolve the high court’s legal questions, Donald Trump won the presidency and named Scott Pruitt, the former Oklahoma attorney general who spearheaded the states’ lawsuit, as the new EPA administrator. The Trump administration swiftly rescinded the Clean Power Plan altogether.
Though the Republican administration rejected federal scientists’ own warnings about the severity of climate change, a 2007 Supreme Court ruling required the EPA to regulate carbon dioxide as a pollutant under the Clean Air Act, meaning Trump couldn’t simply do away with the rule. His EPA had to replace it.
In 2019, the EPA ― now under Trump’s second administrator, former coal lobbyist Andrew Wheeler ― finalized the Affordable Clean Energy rule, which focused exclusively on fixes within power plants’ fence lines. But the regulation actually gave power stations the incentive to burn more coal, as long as the plant complied with modest efficiency improvements.
“After two failed attempts to regulate the power sector’s tremendous carbon pollution load, EPA finally gets it just right with this proposal.”
- Jay Duffy, litigation director at the Clean Air Task Force
A technicality ultimately sealed that regulation’s fate, too. The Trump EPA had sought to cement its definition of the Clean Air Act’s contentious fence line provision. On those grounds, the U.S. Court of Appeals for the District of Columbia Circuit struck down the ACE Rule on Jan. 19, 2021, Trump’s last full day in office.
Soon after, the Biden administration declined to defend the regulation in court, leaving the U.S. without a federal climate rule for power plants.
While Biden focused his efforts with Democratic control of Congress on enacting federal subsidies for clean energy, the Supreme Court agreed to hear a Republican case on Trump’s ACE rule. The unusual decision to wade into a regulatory case with no real stakes ― the Biden EPA had no plans to implement the ACE rule regardless of the legal ruling ― was widely seen as an effort by the high court’s new conservative supermajority to hamper the EPA’s ability to regulate greenhouse gas emissions.
In June 2022, the court ruled that Trump’s fence line definition was correct, closing off what had already become an unlikely avenue for the EPA to try again to regulate power plant emissions. Rather, utility lawyers at the time warned that the decision would all but force the Biden administration to take a more drastic and incontestably legal approach to slashing emissions, by effectively banning fossil fuel plants without carbon-capture equipment.
That’s the approach the White House took this time. Still, West Virginia Attorney General Patrick Morrisey (R) said Thursday that his state would sue to block the latest regulation.
“Based upon what we currently know about this proposal, it is not going to be upheld, and it just seems designed to scare more coal-fired power plants into retirement—the goal of the Biden administration,” Morrisey said.
“That tactic is unacceptable, and this rule appears to utterly fly in the face of the rule of law. The U.S. Supreme Court has placed significant limits on what the EPA can do—we plan on ensuring that those limits are upheld, and we expect that we would once again prevail in court against this out-of-control agency.”
But the Clean Air Task Force, typically considered among the most pragmatic national green groups in the U.S., said the EPA’s legal footing is on the same firm ground as decadesold regulations requiring scrubbers for the kinds of power plant pollutants that once caused widespread acid rain.
“After two failed attempts to regulate the power sector’s tremendous carbon pollution load, EPA finally gets it just right with this proposal,” Jay Duffy, the nonprofit’s litigation director, said in a statement. “Relying on its conventional Clean Air Act authority to divide the power fleet into subcategories and set stringent emission limits based on traditional controls such as efficiencies, fuels and scrubbers, the Agency proposed meaningful emission limits on the bulk of the fleet based on cost-effective pollution control measures.”