How the EPA can still fight climate change in the wake of the Supreme Court ruling on power plant emissions

Climate change experts were quick to denounce the Supreme Court’s ruling on Friday that the Environmental Protection Agency had overstepped its authority when it issued regulations to limit power plant emissions.

“Today, the Supreme Court released a ruling that will have grave consequences on our ability to rapidly reduce carbon emissions,” said Daniel Bresette, executive director of the Environmental and Energy Study Institute, a think tank, in a statement.

While the ruling doesn’t mean that the EPA no longer has any power to regulate carbon dioxide emissions under the Clean Air Act, it does indicate that the strength of future regulations is now uncertain. Authored by Chief Justice John Roberts, the 6-3 decision in West Virginia v. EPA held that the EPA cannot set industrywide pollution standards that effectively require electric utilities to switch from coal to cleaner energy sources. But it did not overturn the agency’s authority to set pollution limits based on the best available pollution control technology at coal-fired power plants.

Environmental activists rally in front of the Supreme Court
Environmental activists rally in front of the Supreme Court on Wednesday. (Drew Angerer/Getty Images)

What constitutes the best widely available technology, however, is a contentious question, and the nation’s ability to meet President Biden’s goal of cutting greenhouse gas emissions in half by 2030 hinges on the outcome.

If the EPA finds that carbon capture and storage, also known as CCS, is the best available pollution control technology, then it can require emissions cuts from coal-fired power plants so steep that they effectively have to install the technology or move away from coal. Many environmental advocates think that the courts will allow the EPA to mandate the use of CCS to lower emissions provided that EPA can argue that the technology is sufficiently affordable and accessible. Coal industry advocates, on the other hand, express skepticism that the EPA could convince the courts that CCS is affordable and accessible — or that it even would try.

“As disappointed as I am by a lot of the opinion ... the court seems to say that EPA can set technology-based standards that apply to sources in a category and can make them operate more cleanly,” David Doniger, senior strategic director of the Climate & Clean Energy Program at the Natural Resources Defense Council, told Yahoo News. “So that’s where the opportunity is for EPA to take another try at this.”

While the ruling disallowed a regulation that explicitly requires utilities to move away from coal, it did not say that regulations having that effect are off the table. That leaves open the option for the EPA to write a rule with clean technology requirements so stringent that it makes more economic sense for utilities to switch to wind or solar power than to add the expensive pollution control technology.

The Environmental Protection Agency
Environmental Protection Agency headquarters in Washington, D.C. (Stefani Reynolds/AFP via Getty Images)

Likewise, while the Supreme Court held that a system based on making coal plants buy credits from cleaner plants was outside the scope of the Clean Air Act, it did not say that a regulatory framework that incorporates credit trading between coal plants would be out of bounds. In other words, a rule could say that each coal plant must reduce its carbon footprint by one-third, and utilities could comply by installing CCS at one out of every three coal plants.

“I think those options are open and EPA could set a reduction which is based on some fraction of the coal plants installing carbon capture and storage equipment and then earning credits to the extent that they overshoot the mark and then other plants could use the credits to stay in business for some period of time,” Doniger said.

Some climate activists even expressed relief that the Supreme Court did not go further in limiting EPA’s authority. "I think there is still a lane there and we were concerned we would have a roadblock,” Jay Duffy, an attorney with the Clean Air Task Force, who authored some of the briefs on the EPA’s side in the case, said on the energy policy podcast Volts. “Even though the Roberts decision throws shade on multiple pathways forward, at the end he says, ‘This is just a narrow decision: All we’re saying is the Clean Power Plan and the system underlying the Clean Power Plan is outside EPA’s authority.”

But more coal-industry-friendly experts say that the EPA is unlikely to set a CCS-based standard for existing power plants because it is too costly and complicated.

Environmental activists
Protesters rallying for environmental protections on Wednesday. (Drew Angerer/Getty Images)

“In terms of the way the Supreme Court wrote the case, that kind of regulation would be theoretically permissible — the idea that there’s a technology that you can use to reduce emissions from a plant when it’s in operation — but the [Clean Air Act] statute also says before EPA can consider a technology like that, it has to be adequately demonstrated considering costs and energy impacts,” Jeff Holmstead, head of the Environmental Strategies Group at the law firm Bracewell, told Yahoo News. “I know a number of political appointees and career appointees [at the EPA], and I think they understand it would be very hard to make that technical case.”

Instead, Holmstead predicted, the next clean power rule would simply be a more ambitious version of the Trump-era replacement for the Clean Power Plan, which required only modest increases in efficiency from coal plants. He added that the Biden administration would also probably follow in Obama’s footsteps by imposing stricter regulations of conventional pollutants from coal such as sulfur dioxide, mercury and coal ash, which would increase the cost of operating coal plants and speed up their replacement.

One thing most experts across the political spectrum agree on is that any CCS-based rule would be met with legal challenges from the same parties — the coal industry and Republican-led states — that just successfully overturned Obama’s Clean Power Plan.

When the EPA first drafted regulation of carbon emissions from coal-fired power plants in 2014, during the Obama administration, its analysis found that carbon capture and storage — separating carbon dioxide at the smokestack and sending it underground — met the affordability and availability requirements for regulations of new power plants under the Clean Air Act.

But the agency did not say the same about requiring CCS for existing coal plants.

The PacifiCorp Hunter coal-fired electrical generation plant in Castle Dale, Utah
A coal-fired electrical generation plant in Castle Dale, Utah. (George Frey/Bloomberg via Getty Images)

“In evaluating partial CCS as the BSER [best system of emission reduction] for new fossil fuel-fired boilers ... EPA determined that the technology is feasible and adequately demonstrated for new units because the major components of CCS — the capture, the transportation, and the storage — are all proven technologies that have been demonstrated at large scale,” the agency wrote in the 2015 final rule for existing plants. “It is more difficult to make that determination for the entire fleet of existing fossil fuel-fired EGUs [energy generation units].”

One of the main reasons is that carbon cannot be safely stored underground everywhere: It has to go in an existing cavern, such as a depleted oil field, and it has to be piped there from the power plant.

Developers of new generating facilities can select a physical location that is more amenable to CCS — such as a site that is near an existing CO2 pipeline or an existing oil field,” the EPA said. “Existing sources do not have the advantage of pre-selecting an appropriate location. Some existing facilities are located in areas where CO2 storage is not geologically favorable and are not near an existing CO2 pipeline.”

That was eight years ago, though, and technology keeps improving. There is currently only one power plant operating with CCS in the United States but more than 20 new power plants with the technology are being planned.

As with the rest of Biden’s climate change agenda, the question is whether Congress will pass the clean energy incentives he proposed in the budget reconciliation package. Adoption of increased tax credits for carbon capture and storage that Biden proposed would make CCS a more affordable option, strengthening the EPA’s potential argument that CCS is an economically viable requirement.

Joe Biden
President Biden speaking in Cleveland on Wednesday. (Saul Loeb/AFP via Getty Images)

The EPA declined to give any hint as to what its new rule will look like. “The EPA will continue to conduct outreach in 2022 on a greenhouse gas rule for existing power plants and propose further rule-making under Clean Air Act section 111 in early 2023,” EPA spokesperson Shayla Powell told Yahoo News. “The Agency is committed to building on the lessons of our prior efforts in this area and engaging a broad range of stakeholders. At this time, it would be premature to speculate on the contents of the proposal.”

The irony of the whole debate is that coal is dying regardless of the new rule, and the only question is whether its death will be hastened enough to avert catastrophic climate change. Even though Obama’s Clean Power Plan never took effect — the Trump administration eviscerated it — the U.S. power sector is on pace to achieve Obama’s emissions reduction target for this decade, thanks to the declining cost of cleaner alternatives including wind, solar and natural gas. (According to Holmstead, many in the energy industry never accepted the EPA analysis that CCS was financially viable for new coal plants back in 2014, but they never challenged it in court because they stopped building new coal plants anyway.)

“The projections are that even if we don’t do anything, we’re going to get further [emissions] reductions between now and 2030,” Doniger said. “If we have these additional standards, you make substantial progress beyond business as usual. It’s a way forward. ... It’s a path towards the kind of emission reduction objectives the Biden administration set out for the power sector.