The EPA Prepares To Go After Fossil Fuel Power Plants… Again

Last year, the U.S. Supreme Court ruled 6-3 in favor of a West Virginia-led coalition that Congress did not grant President Obama’s Environmental Protection Agency broad authority to regulate greenhouse gas emissions from power plants that burn fossil fuels.

Chief Justice John Roberts wrote the majority opinion: “A decision of such magnitude and consequences rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” In other words, the rule was an EPA overreach.

But now the fight is coming back, repackaged by the Biden administration EPA to reach the same goal—shutter coal and natural gas power plants and speed the transition to alternative fuels. As Timothy Puko of the Washington Post first reported, the Biden administration is preparing to unveil “a proposal to require power plants to drastically reduce their greenhouse gas emissions by 2040.”

The rules are expected to include emission limits so stringent that it will make it impossible for large coal and gas power plants to operate unless they can capture and store their carbon emissions. Carbon-capture technology exists, but it has not yet been perfected on a large scale.

Carbon capture is expensive, and efforts to sequester CO2 in the ground typically meet community resistance. Efforts in Louisiana to collect and store carbon in the ground have triggered strong pushback from residents and environmentalists. Livingston Parish responded to public opposition by enacting a moratorium on carbon-injection wells.

The Biden administration and the EPA know this. The point of the new rules is not to speed up the capture and storage of carbon, but rather to force the coal and gas power plants to shut down or switch to alternative fuels, such as hydrogen.

The rules fulfill campaign promises by Biden. His administration announced earlier this month the strictest regulations ever on vehicle emissions to try to force the auto industry to dramatically increase their production of electric vehicles.

That proposal, along with billions in new spending on green energy in the Inflation Reduction Act, and now the power plant rules that are coming, are designed to get Biden closer to his pledge of reducing carbon emissions by 50 percent from 2005 levels by 2030.

Expect West Virginia Attorney General Patrick Morrisey to mount a legal challenge to the new EPA rules. Morrisey, who is running for the Republican nomination for Governor, led the successful fight against the Obama administration rules that the Supreme Court struck down last year. West Virginia’s congressional delegation will also raise a fuss.

But even if Morrisey prevails again, it will take time. All the while, the coal and natural gas industries, as well as utility companies, will be operating under a cloud of uncertainty. That is never good for business.

It is also bad for power company customers. Just last month, PJM interconnection, which operates the power grid for 13 eastern states including West Virginia, warned that the current pace of new alternative energy supplies to replace retiring coal-fired power plants “would be insufficient” to meet demand growth by 2030.

This will be déjà vu on the question of whether the EPA can make rules unilaterally that will shut down the sources of 60 percent of all the electricity generation in this country. The U.S. Supreme Court has already said once that it cannot, but every attempted overreach increases the threat to the stability of the power grid.

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