Appeals Court Refuses to Halt EPA’s Coal-Fired Plant Emissions Rule in Lawsuit by Industry Groups, AGs

Steam billows from a coal-fired power plant in Craig, Colo., on Nov. 18, 2021. Rick Bowmer/AP Photo, File

A federal appeals court has refused a request by a coalition of attorneys general and fossil fuel industry groups to pause a federal regulation aimed at reducing carbon emissions from coal-fired power plants, allowing it to remain in force while the legal challenge plays out.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an order on July 19 that rejects a request by the West Virginia-led coalition to block the Environmental Protection Agency (EPA) rule, which seeks to cut carbon emissions in existing coal-fired plants and any new natural gas plants.

The judges wrote in the order that the groups had not shown they’re likely to succeed on the merits, nor were they able to prove their claim of immediate harm because the compliance deadlines don’t take effect until 2030 or 2032.

In statements provided to The Epoch Times, an EPA spokesperson praised the ruling while West Virginia Attorney General Patrick Morrisey vowed to appeal to the U.S. Supreme Court “as soon as possible.”

The EPA rule, which was published in April, requires coal plants to control a certain percentage of their emissions based on how long they expect to operate, while natural gas plants face emissions control levels depending on how intensely they operate over the course of a year, according to an EPA fact sheet.

Coal plants that plan to run beyond 2039 will have to cut their carbon emissions by 90 percent by 2032, with the same reduction standard applied any new “base load” natural gas turbines, which are defined as those that are generating at least 40 percent of their maximum annual capacity. In order to comply, the power industry would have to install costly emissions control technologies, cap their operations, or shut down some plants.

EPA Administrator Michael Regan said during an April 30 hearing on the agency’s budget request that while the rule provides ways for some older, nonconforming plants to stay online after 2039, it likely will cause “some coal retirements.”

The rule is part of President Joe Biden’s pledge to eliminate carbon pollution from the electricity sector by 2035 as part of his administration’s focus on fighting climate change.

The attorneys general and the industry groups sued EPA to block the rule on an emergency basis, arguing that it was unachievable and posed a threat to the reliability of the nation’s power grid. They also argued that EPA exceeded its authority by adopting the rule without congressional approval.

“This rule strips the states of important discretion while using technologies that don’t work in the real world—this administration packaged this rule with several other rules aimed at destroying traditional energy providers,” Mr. Morrisey said in a statement in May. “We are confident we will once again prevail in court against this rogue agency.”

The West Virginia attorney general was referring to a Supreme Court ruling in June 2022 that declared that EPA lacks broad authority to regulate carbon emissions in a way that would force a nationwide transition away from the use of fossil fuels to generate electricity and that Congress would have to weigh in on the matter.

In its July 19 decision, the appeals court found that the case did not invoke the earlier Supreme Court ruling because EPA only claimed the authority to set emissions limits that would reduce emissions by forcing them to operate more cleanly, rather than cutting them out completely.

In an emailed statement provided by his press secretary, Mr. Morrissey vowed to fight the decision.

“Our position remains the same: this rule strips the states of important discretion while using technologies that don’t work in the real world.  Adding injury to unlawfulness, the Biden administration packaged this rule with several other rules aimed at destroying traditional energy providers,” he said. “We plan to seek a stay from the U.S. Supreme Court as soon as possible.”

EPA press secretary Remmington Belford told The Epoch Times in an emailed statement that the agency is pleased that the court decided to allow the rule to go into effect during the litigation.

“EPA’s final standards will significantly reduce emissions of harmful carbon pollution from existing coal-fired power plants, which continue to be the largest source of greenhouse gas emissions from the power sector,” he said. “They will also ensure that new natural gas combustion turbines, some of the largest new sources of greenhouse gases being built today, are designed using modern technologies to reduce climate pollution.”

The EPA projects that the rule will yield up to $370 billion in climate and health net benefits and avoid 1.38 billion metric tons of carbon pollution through 2047. The agency estimates the rule will avoid up to 1,200 premature deaths, 870 hospital and emergency room visits, and 360,000 cases of asthma symptoms, Mr. Belford said

“All these benefits can be achieved without disrupting the delivery of reliable electricity,” he added.

The National Mining Association, which joined the legal challenges, said it would join West Virginia to request an emergency stay from the Supreme Court.

“The stakes couldn’t be higher. The nation’s power supply is already being pushed to the limit, and this rule flies in the face of what the nation’s utilities, grid operators, and grid reliability experts tell us is needed to maintain grid reliability,” Rich Nolan, NMA president and CEO, said in a statement. “While the EPA is trying to tear down the dispatchable generating capacity we have and dearly need with unworkable mandates, electricity demand is soaring and the obstacles to building new generating capacity and enabling infrastructure are mounting.

“We are headed for a crisis of the EPA’s making.”

Environmental groups praised the ruling, saying that the court validated the EPA’s legal responsibility to control carbon pollution.

“Americans across the nation are suffering from the intense heat waves, extreme storms and flooding and increased wildfires caused by climate pollution,” Vickie Patton, general counsel of the Environmental Defense Fund, which filed an amicus brief in the case, said in a statement. “EPA has a legal responsibility, mandated by Congress, to control harmful climate pollution, which the court recognized today.”

The case now proceeds to consideration on the merits, with the court ordering the parties to submit briefs within 14 days proposing formats and schedules.