39 Republican US senators have signed a letter to EPA administrator Michael Regan requesting that the agency rescind its proposed power plant rule. On May 11, 2023, the EPA announced new carbon pollution standards for coal and natural gas-fired power plants designed to protect public health, reduce harmful pollutants, and deliver up to $85 billion in climate and public health benefits over the next two decades.
It said the proposal for coal and new natural gas power plants would avoid up to 617 million metric tons of total carbon dioxide through 2042, which is equivalent to reducing the annual emissions of 137 million passenger vehicles — roughly half the cars in the United States. Through 2042, EPA estimates the net climate and health benefits of the standards on new gas and existing coal-fired power plants are up to $85 billion.
The proposals would also result in cutting tens of thousands of tons of particulate matter (PM2.5), sulfur dioxide, and nitrogen oxide, harmful air pollutants that are known to endanger people’s health, especially in communities that for too long have disproportionally shouldered the burden of high pollution and environmental injustice. In 2030 alone, the proposed standards would prevent:
- approximately 1,300 premature deaths
- more than 800 hospital and emergency room visits
- more than 300,000 cases of asthma attacks
- 38,000 school absence days
- 66,000 lost workdays
“By proposing new standards for fossil fuel-fired power plants, EPA is delivering on its mission to reduce harmful pollution that threatens people’s health and well being,” said EPA administrator Michael Regan.
“EPA’s proposal relies on proven, readily available technologies to limit carbon pollution and seizes the momentum already underway in the power sector to move toward a cleaner future. Alongside historic investment taking place across America in clean energy manufacturing and deployment, these proposals will help deliver tremendous benefits to the American people — cutting climate pollution and other harmful pollutants, protecting people’s health, and driving American innovation.”
What Is The EPA Power Plant Rule?
According to the World Resources Institute, the standards would set pollution limits that power plants must comply with, based on three possible emissions control strategies.
- carbon capture and sequestration
- co-firing a coal plant with natural gas
- co-firing a natural gas plant with clean hydrogen.
The most stringent pollution limits apply to coal plants that continue to operate over the long term. The most significant element of the proposal is a requirement for coal-fired power plants to reduce their emissions rate by almost 90% by 2030 unless they voluntarily commit to a legally binding retirement date no later than 2040. EPA based this performance standard on the ability of these plants to install CCS technology.
Plants that operate beyond 2031 but commit to retire by 2040 would have to reduce their emissions by an amount based on co-firing 40% natural gas with coal (as a proportion of their energy input), resulting in a 16% reduction in their emissions rate.
New natural gas power plants that operate with more than a 50% capacity factor (which measures a plant’s electricity output over a year compared to how much it would produce if it operated at its maximum output level for the entire year), which EPA refers to as “baseload” plants, would be required to achieve an emissions rate based on using CCS for 90% of its emissions starting in 2035 or co-firing 30% of its gas by volume with clean hydrogen by 2032 and 96% of it with clean hydrogen by 2038. Large (>300 megawatts) existing baseload gas plants would have to meet the same standards as new baseload gas plants.
New gas plants that operate between a 20% and 50% capacity factor would be required to meet an emissions rate based on co-firing with 30% clean hydrogen by 2032, but would not have to meet the more stringent standards that apply to baseload plants in 2035 for CCS or 2038 for hydrogen co-firing.
Senators Object To EPA Power Plant Rule
In their letter, the 39 Republican senators argued that the carbon capture and clean hydrogen technologies required under the rule are “still nascent and have not yet been adequately demonstrated,” according to The Hill.
What is interesting about that claim is the UK prime minister Rishi Sunak this week defended his plan to offer new oil and gas leases in the North Sea on the basis that any new carbon emissions would be dealt with by carbon capture technology. Somebody is lying — either Sunak or those senators. What we know today is that there are no carbon capture strategies that are functioning effectively anywhere in the world. The EPA is betting that its rule will drive innovation and that carbon capture and clean hydrogen will become viable in time to allow power generators to comply with the proposed rule.
“Congress’s recent provision of billions in funding for research, development, and demonstration for these technologies demonstrates the technologies are not adequately demonstrated and not sufficiently mature for use in regulatory mandates,” the senators said.
The group accused the EPA of “effectively” requiring coal plants to shut down with its carbon capture mandates, noting that capture technology is “not commercially operational for any coal or natural gas plant in the United States” and “not viable at commercial scale yet.
”That raises another interesting topic. The oil and gas industry for years has been touting carbon capture as a magic cure for its climate killing emissions. Once again, someone is lying — either the oil and gas industries, or the senators.
When the rule was first proposed in May, Regan acknowledged that it was likely to prompt some coal plants to shut down. “We will see some coal retirements, but the way this program is designed, this is really a decision that will be made company by company and state by state. It gives a ton of flexibility so that the power sector can make individual decisions based on available technology and the resources that they want to expend.”
The Supreme Court & Emissions
Certain segments of US society have been smarting under the strictures of the federal bureaucracy since the days of FDR and the New Deal. Yet while they decry the rise of the administrative agency, Congress over the past 60 years has happily ceded its responsibility to set policy to the very same agencies. It’s a marvelous way for our elected representatives to avoid taking positions on contentious issues. Why put yourself in the line of fire when you can pass the buck to the agencies and let them take the heat?
Last year, the US Supreme Court, which is currently overloaded with members who were suckled by the Federalist Society, an organization organized and funded by fossil fuel billionaires like Charles Koch (See Dark Money by Jane Mayer for more on that topic), tossed a bomb into the EPA’s ability to do its job in West Virginia Vs. EPA.
In that decision, penned by Chief Justice John Roberts, the court based its decision on a cherished principle invented by reactionaries called the “major questions” principle. This is another construct of the radical right, just like the notion that corporations have the same rights as real people and therefore they should be free to distort election campaigns with virtually unlimited cash contributions. The Supreme Court has given the wealthy a warm embrace, while ignoring the rights of ordinary citizens who don’t have millions of dollars available to influence the political process.
The Council on Foreign Relations weighed in on the West Virginia Vs EPA decision with a critical analysis that is cogent and timely. It said, “the opinion cloaks federal rule making in uncertainty, particularly when the proposed regulation relates to climate change.” The court’s conservatives explicitly relied upon — for the first time in a majority opinion — the “major questions” doctrine.
“That doctrine holds that in “extraordinary cases” of “political and economic significance,” where an agency makes “unheralded” use of its authority, the agency must be able to point to a “clear statement” from Congress authorizing its action. Since climate change involves a matter of vast political and economic significance, and since Congress has failed to pass major climate legislation for years, the EPA could not point to the clear authorization required by the court.
“Most other agencies may well also lack a clear statement on climate change, putting a bullseye on climate regulations. Indeed, even though the ink is hardly dry on the decision, some have already trumpeted the majority opinion as grounds for challenging proposed climate rules from the Department of Transportation and the Securities and Exchange Commission, as well as an existing Nuclear Regulatory Commission rule.
“Uncertainty stemming from the decision will cause setbacks. Federal bureaucrats could forswear climate regulation altogether. If they do proceed and the regulation gets challenged in court, which it surely will, trial judges will need to determine whether the major questions doctrine applies, a determination for which the majority provided sparse guidance as Justice Elena Kagan noted in her blistering dissent. There will be delays once again as district court determinations wend their way up to the appellate court.
“At some point greater judicial clarity will emerge as to the stretch of the Supreme Court’s ruling, but that will take time—perhaps a lot of time. And time is exactly what climate scientists tell governments they do not have. According to the latest UN consensus-based scientific assessments, every additional amount of heating leads to growing weather extremes. Moreover, if global temperatures go beyond 1.5 degrees Celsius above pre-industrial times, the globe faces the threat of severe and potentially irreversible climate disruptions.”
In their letter to Michael Regan, those 39 senators flung down the gauntlet and let it be known they intend to use the West Virginia Vs EPA ruling to delay, delay, delay, and then delay some more while the Earth boils. Their letter says the power plant rule is in “direct conflict” with the Supreme Court’s “major questions” doctrine and they intend to sue the agency unless they get their way.
“While the Agency falsely claims this does not run afoul of the Supreme Court’s decision, it is undeniable the proposal would require generation shifting that the Court has definitively found Congress has never granted EPA the authority to require under the Clean Air Act,” the letter said.”
The Takeaway
On one hand, the Supreme Court is sending a signal to Congress that it needs to get off the schneid and do its job. That’s actually an important message for a body that has been shirking its obligations for generations and is only too happy to allow the executive branch to encroach upon its constitutional mandate. On the other hand, Congress is so dysfunctional that nothing can get done.
Is anyone under the illusion that the Congress could take up the issue of climate change and craft actual legislation that is timely and effective? Not one Republican voted in favor of the Inflation Reduction Act or any of the other proposals put forth by the Biden administration. They are content to delay and obstruct the political process as long as possible. The Supreme Court has bolstered their ability to do so.
Is there an answer? Yes there is. Renewable energy has to offer such a compelling economic case that no one in their right mind would continue operating a coal- or methane-fired generating station past 2027, and certainly not build any new ones today. Economics is the only factor that will win the day, despite the continued obstructionism of Republicans and the Supreme Court.
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