The EPA’s Power Plant Rule … We’ll See You in Court

June 5, 2024
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The Bowen Steam Plant near Euharlee, Georgia, one of the largest coal-fired power plants in North America. A Biden administration rule finalized in April takes aim at carbon dioxide emissions from such facilities. Photo: Alan M Cressler, U.S. Geological Survey.

Issue Backgrounder: The EPA’s Power Plant Rule … We’ll See You in Court

By Joseph A. Davis

If you are looking for an epic environmental battle that will make news for years, the U.S. Environmental Protection Agency’s “power plant rule” is worth following.

It’s a fight that has already been going on for years. The November 2024 election will bring a new chapter, for sure, but could turn the story in an unpredictable direction.

The point is: This is not just ideological thumb wrestling. The outcome could profoundly affect the climate future of the United States and the entire planet.


The EPA power plant pollution rules

have changed with the political winds

— and Supreme Court decisions.


Over and over, as administrations change, the EPA power plant pollution rules have changed with the political winds — and Supreme Court decisions. Almost as soon as the EPA issues them, it seems, lawyers from both sides race to the courthouse and litigate the rules until the next election changes them again.

It’s a climate issue. As one of the world’s highest emitters of greenhouse gases, the U.S. pumps huge amounts of carbon dioxide into the atmosphere. Climate heating seems to be tipping the planet into a disastrous regime of floods, drought, famine, tropical storms, wildfires, heat illness and climate migration.

But it’s also more than just a climate issue; to the degree that it ends up reducing the use of coal and fossil methane for power, it also reduces a number of other pollutants in both air and water — for example, toxic heavy metals like lead.

The latest developments? The EPA in late April 2024 finalized a package of four rules clamping down on power plant pollution. The key rule tightened limits on CO2 emissions from existing coal-fired and new natural gas electric power plants. This is the one commonly called the “power plant rule.”

Quite promptly, a coalition of 27 Republican attorneys general filed suit to block the rule restricting power plant emissions. They were joined by fossil fuel and utility trade groups. Environmental and health groups, predictably, will be on the other side.


Déjà vu all over again

The legal framework for all this is the Clean Air Act of 1970. In the Supreme Court’s landmark 2006 decision (Massachusetts vs. EPA), it held that the act authorized the EPA to regulate greenhouse gas pollutants.

That was during the presidency of George W. Bush, who was not supportive of efforts to address climate.

It was also a more centrist court than the current conservative-dominated one. The reliability of Justices’ declared belief in stare decisis (letting past decisions stand) has come into question in today’s court, which two years ago, for instance, famously reversed the 50-year-old Roe precedent on abortion.

When Barack Obama became president in 2009, he launched an effort to get a climate bill through Congress. This ultimately took the form of a “cap-and-trade” measure (the Waxman-Markey bill).


Obama then turned to addressing

climate through whatever executive

powers were available to him.


Although it had some bipartisan support, it failed by a narrow margin to get through Congress. The House passed it, but it died in the Senate because of the filibuster. Obama then turned to addressing climate through whatever executive powers were available to him.

Obama’s EPA in 2009 issued the “endangerment finding” — the scientific finding that greenhouse gas emissions of CO2 endangered public health. That allowed the EPA to regulate CO2 under the Clean Air Act.

The Obama EPA quickly started formulating a series of executive actions for controlling greenhouse gas emissions. Known as the “Climate Action Plan,” it was announced in June 2013.

The plan included a wide range of executive actions; some did stand. But the main rule to reduce power plant greenhouse gas emissions, which wasn’t finalized until August 2015, did not last. GOP-led and fossil fuel states challenged it in court, freezing its implementation pending a final verdict.


Trump undoes policies, lawsuits ensue

Donald Trump was inaugurated as president in January 2017, and among his very first actions was a sweeping executive order meant to start neutralizing and reversing the Obama-era climate rules and policies. He also rescinded Obama’s climate action plan.

Trump and his allies in Congress went on to undo many environmental health and safety laws and regulations. The Trump EPA came up with its own approach to power plant CO2. In June 2019, the Trump EPA finalized (may require subscription) its “Affordable Clean Energy” rule.

A phalanx of blue state attorneys general promptly sued to stop it. And a platoon of red state attorneys general joined the courthouse fray on the other side. Eventually, the court system threw out the Trump plan as well.

So things were at an impasse when the Biden administration started. Biden’s EPA quickly started developing its own rule for power plant emissions. Rulemaking takes time — more so when it’s controversial. The EPA proposed the Biden “Power Plant Rule” in May 2023. It went final in April 2024, as we noted.

GOP states promptly went to court challenging it. Dem states took the other side.


An emerging player — the Supreme Court

By this time, there was another contender in the arena: the Supreme Court. The court had been moving steadily to the right (toward the GOP and utilities), as a result of three Trump conservative appointments.

This court has already whittled down the EPA’s authority to address climate pollution at least once — in the June 2022 West Virginia vs. EPA decision.

The legal arguments get dark and tangled very quickly, but it held that the Clean Air Act did not authorize the EPA to dictate generating technology, but only emissions limits. That decision was based on the court’s so-called “major questions” doctrine, which conservatives hope will limit a wide range of federal regulations.


The question now is whether

the court will get — and take —

an opportunity  to whittle down

the EPA’s regulatory power even further.


The question now is whether the court, currently clouded by questions of partisanship and corruption, will get — and take — an opportunity to whittle down the EPA’s regulatory power even further.

Fossil fuel and power companies expect the court to rule on it, although it hasn’t reached the high court level yet. The case (which has been joined by fossil and utility groups, as well as by environmental groups) is currently in the D.C. Circuit Court of Appeals, which is pretty liberal.

What now? A lot depends on the Supreme Court. A lot depends on the 2024 presidential election. A lot depends on the global market forces that are already driving the transition from fossil to renewable energy.

But the real truth of the situation may have been described in an April 26 New York Times article (may require subscription) by Coral Davenport. She described the Biden power plant rule as “one more hairpin turn in a zigzag approach to environmental regulation in the United States, a pattern that has grown more extreme as the political landscape has become more polarized.”

Sad but true.

[Editor’s Note: For more on this and related topics, see our Topic on the Beat: Climate Change page, which includes a selection of SEJournal stories as well as the latest climate change headlines from EJToday.]

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.

* From the weekly news magazine SEJournal Online, Vol. 9, No. 23. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.

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