The US Environmental Protection Agency on 25 April finalised new regulations targeting pollution from power plants, including a landmark rule that requires sweeping reductions in carbon emissions from existing coal and new gas plants to combat climate change. The move is expected to usher in major legal challenges.

The new Rules

The EPAs require drastic cuts in carbon pollution from power plants and update long-standing measures to reduce mercury and toxic air pollutants, clean up wastewater and reduce coal ash discharges.

The power plant emissions Rule mandates that many new gas and existing coal plants reduce their greenhouse gas emissions by 90% by 2032. That could require the US power industry to install billions of dollars worth of emissions control technologies or shut down the most polluting facilities operating today.

The new plant emissions Rule does not directly require a shift from fossil fuels. Legal experts say it attempts to make use of a more traditional reading of the agency’s power in the Clean Air Act by favouring technologies like carbon capture and sequestration that can be installed at the power plants themselves.

The EPA says the most stringent reductions can be achieved through the installation of carbon capture and sequestration (CCS) technology.

The EPA projects the emissions rule will cut 1.38 billion metric tons of carbon pollution through to 2047.

Previous court actions

The new carbon emissions regulations come nearly two years after the US Supreme Court struck down a previous power plant emissions rule developed during the Obama administration, which sought to spur a shift from coal to cleaner energy sources.

In its 6-3 ruling in ‘West Virginia v EPA’ the Supreme Court found that the Clean Air Act did not expressly authorise the EPA to require electricity generators to shift from fossil fuels to energy sources like wind or solar that emit less carbon dioxide.

The decision invoked the ‘major questions’ legal doctrine, which requires regulatory agencies to possess explicit congressional authorisation before they can take consequential actions on issues of far-reaching importance and societal impact.

Probable actions

West Virginia Attorney General Patrick Morrissey has promised to challenge the power plant emissions rule in court. Last year, Morrissey led a group of Republican attorneys general who complained that the rule sets ‘unrealistic’ and expensive standards that go well beyond the EPA’s legal authority. The states said the rules would ‘kill jobs, raise energy prices, and hurt energy reliability.’

The National Rural Electric Co-operative Association has also filed a lawsuit challenging the rules. NRECA CEO Jim Matheson said: ‘EPA’s power plant rule is unlawful, unreasonable and unachievable. It exceeds EPA’s authority and poses an immediate threat to the American electric grid.’

US Senator Shelley Moore Capito of West Virginia, a republican who sits on the Senate environment committee, separately said that she would introduce a resolution to overturn the rules.

Business and electric utility groups including the US Chamber of Commerce and the Edison Electric Institute have said the Rule relies too heavily on carbon-quelling technologies that have not been deployed at scale and face significant regulatory hurdles. They also argued that installing capture and sequestration systems would require building pipelines and emissions storage facilities outside the power plants themselves.

Likely arguments

Republican-led states and industry groups are likely to claim in any lawsuit that the emissions rule far exceeds the EPA’s legal authority, triggers the major questions doctrine and violates administrative law. The other pollution rules announced on 25 April are also likely to be targeted in court.

Legal experts say the EPA’s decision to trim the final carbon emissions rule from an earlier proposal – including by removing hydrogen as a ‘best system of emissions reduction,’ and removing requirements for existing gas plants – may make the rule somewhat easier to defend but will not stop the coming courtroom barrage.