The Environmental Protection Agency (“EPA”) is making yet another attempt (its third) to regulate carbon emissions from power plants with a new proposal, looking to target the electric power sector that is responsible for 25% of all greenhouse gas emissions in the United States. Previous attempts by prior administrations failed, but the Biden administration is adamant on seeing the sector overregulated. This new proposed rule aims to reduce emissions from power plants primarily through the controversial method of carbon capture and storage, but also through low-GHG hydrogen co-firing and natural gas co-firing.

President Joe Biden’s administration has prioritized addressing climate change, and this new rule is a crucial component of the administration’s strategy.

According to White House National Climate Advisor Ali Zaidi, the new rule aligns with advancements in cleaner energy technologies that are increasingly being adopted and produced in the United States.

The EPA’s proposal focuses on compliance techniques that have gained favor following the Supreme Court’s ruling in West Virginia v. EPA, which prevented the EPA from forcing power plants to shift from coal to cleaner energy sources. As the court clarified with that case, the EPA does not have the power to impose “generational shifting” on power plants. This decision prompted the EPA to go back to the drawing board and craft the current proposed rule which supposedly adheres to the decision of the Court. The EPA stated that the new rule is designed to withstand judicial scrutiny and follows the agency’s traditional approach under the Clean Air Act to mitigate pollution from stationary sources.

The proposed rule would apply to new gas-fired combustion turbines, existing coal, oil, and gas-fired steam generating units, and certain existing gas-fired combustion turbines. The emission reductions required by the EPA would vary based on a variety of factors such as facility type, fuel source, operational frequency, and expected lifespan.

Carbon capture and storage (“CCS”) technology is a compliance technique endorsed by both Congress and the Biden administration but is still controversial. Environmentalists have expressed hesitation to implement CCS, citing concerns about its compatibility with environmental and climate justice. Additionally, infrastructure projects related to CCS have faced opposition from local governments, making its potential implementation by the EPA complicated and unclear.

EPA’s legal ability to regulate greenhouse gas emissions from power plants dates back to 2003, where the agency made findings that it did not have the authority to regulate GHG emissions for climate change purposes and the 2007 Supreme Court ruling in Massachusetts v. EPA, where a divided court ruled that carbon dioxide is considered an air pollutant under the Clean Air Act despite it not being listed as such. However, previous attempts to formulate regulations based on this ruling have been disrupted by disputes over the extent of the EPA’s authority. The Biden administration hopes that this new rule will finally be a regulation following Massachusetts to be implemented, but it will certainly be challenged in the courts.

Text of the proposed new rule HERE.

• Next
• Previous