Unworkable and Unlawful

With the U.S. power grid hanging on by a thread, and coal and natural gas plants working overtime to meet soaring power demand this summer, all eyes are on the fate of the so-called Clean Power Plan 2.0 and the threat posed by the rule to the nation’s grid reliability. 

So much so that 39 senators wrote to the U.S. Environmental Protection Agency (EPA) asking Administrator Regan to rescind the proposal. They see the rule as unlawful, with EPA once again overstepping its authority under the Clean Air Act by attempting to transform the nation’s power sector without clear and explicit authorization from Congress. 

Their concerns have been echoed by a wide variety of stakeholders in formal comments to the agency. Twenty-one state attorneys general argued in their comments that the proposed rule makes the same mistakes that saw the original Clean Power Plan struck down by the Supreme Court. The rule sets unrealistic standards by relying on unproven technologies — namely carbon capture and hydrogen blending — and will force the closure of plants and result in the very generation shifting the Supreme Court told EPA it doesn’t have the authority to impose. “EPA has no more authority to mandate this result indirectly than it did when it tried to do so directly,” the states said. 

The National Mining Association also found fault with EPA’s unrealistic technology mandate, namely carbon capture as a best system of emissions reduction. “EPA vastly overstates the availability and capability of that promising, but as yet unrealized, technology.” There is one coal plant in the world employing carbon capture at the capture rate mandated by EPA and it’s not even in the U.S. 

The NMA also argues that forcing natural gas co-firing on coal plants “ignores the U.S. Supreme Court’s West Virginia decision prohibiting EPA from using Section 111 to intentionally alter the nation’s energy mix.” Further, early retirement — a third option of compliance under the EPA proposal — is not a lawful “performance standard.” 

Finally, the NMA rebuts EPA’s claim that the proposed rule does nothing but require changes that would be expected to occur anyway as a result of the tax credits Congress recently expanded and extended in the Inflation Reduction Act. 

“Congress’ decision to incentivize industry to act voluntarily is not a grant of authority to EPA to demand that same action under penalty of law. In fact, Congress’ decision to use the carrot of tax credits instead of the stick of mandatory requirements confirms Congress has not implicitly given EPA the authority it claims … to find in Section 111(d)” of the Clean Air Act.  The NMA concludes, “EPA seizes on broad, largely undefined language for textual plausibility, but in doing so ignores reality, common sense, and legal precedent.”

EPA’s rule is both unlawful and unworkable and built upon a house of cards the agency itself likely realizes will collapse in the courts. Is the EPA willing to listen and pivot from a plan that simply won’t work? Or will it continue to kowtow to environmentalist pressure and charge ahead with a proposal that poses a dire threat to the nation’s grid reliability and energy security?

Conor Bernstein is a spokesperson for the National Mining Association, the industry’s trade group based in Washington, D.C.