How To Power Through Your EPA Power Plant Rule Coverage

A proposed federal rule would reduce C02 emissions from power plants, which emit a quarter of the United States’ greenhouse gases. Above, western Kentucky’s Paradise Power Plant, which was taken offline during the last decade. Photo: Tennessee Valley Authority, via Flickr Creative Commons (CC by 2.0).

Issue Backgrounder: How To Power Through Your EPA Power Plant Rule Coverage

By Joseph A. Davis

The power plant rule that the U.S. Environmental Protection Agency proposed May 11 will be a major story for environmental journalists in the next several years. But it won’t be easy to cover.

Perhaps most importantly, don’t forget that this story is fundamentally about climate heating — which matters to U.S. residents and people around the world, no matter the legal, technological and political complexities.

The power plant rule attempts to cut drastically the nation’s greenhouse gas emissions. Electric power plants emit about 25 percent of the nation’s greenhouse gas emissions in the form of carbon dioxide.

 

There will be epic conflicts over

this rule — but to cover it simply

as a political or legal contest

is to miss what’s really at stake.

 

It’s worth remembering as wildfires rage, hurricanes roar, floods and drought damage and destroy people’s lives, and extreme heat sickens and kills people. Yes, there will be epic conflicts over this rule — but to cover it simply as a political or legal contest is to miss what’s really at stake.

 

Gauntlet of challenges ahead

It’s understandable that a few headline writers (may require subscription) wrote of the EPA proposal as the “first” ever power plant climate rule. No: It’s just the latest attempt. In fact, this is the EPA’s third try (at least) to issue a climate rule for power plants.

Already, though, we can see the gauntlet of challenges that thwarted the earlier rules readying to assault this one.

Power plant emissions have been a battleground since before the conflicts over acid rain in the 1970s and ’80s. During the many Clean Air Act conflicts of the past, it became clearer just how much of pollution politics was, at bottom, a regional economic competition over fuel sources. Upwind interests see it differently than downwind interests.

Coal plants emit much more CO2 than plants using gas. Whatever the fuel — coal, oil, gas or wood — power plants have been a major source of other pollutants: particulates, smog ingredients and toxics like mercury to name some.

Climate effects aside, such pollutants can profoundly harm human health. And often the most disadvantaged and vulnerable communities are most harmed by this pollution. Power plant emissions are an environmental justice issue. Sometimes the lobbyists forget.

 

Plants pushed past normal life

Power plants have skated for a long time. And the electric utilities that run them are used to long-term planning for these facilities. Yet many are getting old.

Power plants, supposedly, have a life span (at least if you listen to engineers; nominally, coal plants are supposed to last roughly 40 years).

 

The funny constraints of Clean Air Act

rules have pushed many coal plants

past their normal life expectancy.

 

But the funny constraints of Clean Air Act rules have pushed many coal plants past their normal life expectancy.

How those rules have kept old coal plants alive is a little complicated. From its beginning in 1970, the Clean Air Act distinguished “new sources” for its most stringent emissions standards (which were called new source performance standards), while older plants were essentially grandfathered and exempt.

As older plants were allowed to do maintenance, that sometimes amounted to practically rebuilding the plant. So the EPA set up a rule for “new source review,” or NSR, which essentially kept old plants from increasing their output. For a long time, NSR was a key political and legal battleground.

A data point: In recent years, the average age of retired coal plants was 54 years. Today, the average age of still-operating coal plants is 45 years. Operators of coal plants currently plan to retire some 28% of capacity.

 

Staying on top of the story

Let’s look at half-a-dozen things to watch for as you cover this epic story.

1. Keep an eye on the docket: Remember, what the EPA did on May 11 was to propose a rule. That means it gets printed in the Federal Register, a docket (a record) is opened and comments are invited. The proposal is so new, it was only published in the Federal Register May 23. Here is the text. The docket number is EPA-HQ-OAR-2023-0072. So if you are reporting on this, you may want to watch the docket. It will have the text, related documents and most formal comments. It may get confusing, though, because this rulemaking is actually a collection of proposals. There is also a pre-proposal docket here. And there is a pretty good EPA resource page about this rulemaking.
2. Watch for hearings: There will also be public meetings for comment, although the schedule has not been announced yet. Some may be watchable online.
3. Wait for the final rule: Although the EPA has done a lot of consulting already, the eventual final rule may be somewhat different from the proposal. There will be another wave of journalistic coverage of this and more reactions from politicians, think tanks and interest groups. The date of the final rule will be important, as it interacts with politics.
4. Factor in Congressional response: Actually, the Congressional response has already begun. Sen. Joe Manchin, D-W.V., criticized (may require subscription) the proposed rule as advancing a “radical climate agenda” and trying to “regulate coal and gas-fueled power plants out of existence.” Manchin said he will oppose all EPA nominees unless the Biden administration rescinds the proposal. Speeches on the floor of the House and Senate can be expected. Hearings may well be held in both chambers, with the House likely more hostile than the Senate. Many other lines of action are possible. The House Appropriations Committee could not only fuss about the proposal but attack its funding. A Congressional Review Act resolution undoing the rule is also possible. It may even find the votes. But Biden would veto it.
5. Expect lawsuits: Swarms of lawsuits were part of what brought down previous EPA attempts to issue a power plant rule. There will be many this time as well, although their outcome is not a given. The lawsuits will come from both sides. Red state attorneys general, fossil fuel lobby groups and anti-regulatory lobbies will be there. What may be different this time is the Supreme Court. The right-leaning Trump-enhanced court we have at present already tried to rule on these issues in June 2022. The West Virginia vs. EPA decision is still being dissected by lawyers, but the court did narrow the EPA’s power under the CAA to regulate greenhouse gas emissions. In the end, its effect was more than a little unclear. Two clear aspects of the decision did stand out. One held that the EPA could only regulate emissions “inside the fenceline,” meaning various trading schemes were disallowed. The other discouraged the EPA from mandating certain technologies. Whatever the law, EPA Administrator Michael Regan said the agency has studied how to steer its new proposal past the restrictions imposed by the court and expressed confidence that the new rule will pass legal muster. But the lawsuits can’t even start until the rule goes final, and it could take years for them to work their way up to the Supreme Court. Stay tuned.
6. And then there’s the 2024 election: Timing is everything, they say. There will be another presidential and Congressional election in 2024. Nobody can be sure of the outcome. If Biden wins reelection, there will be four more years for legal issues to work themselves out, and for the EPA to implement the rule. If Democrats keep or win more control in Congress, they may back up the rule. But that may not happen. If Trump (or another Republican) wins, he could go about unraveling this climate rule just as he did the last one.

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.

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* From the weekly news magazine SEJournal Online, Vol. 8, No. 21. 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.