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Legal challenges fly over EPA power plant rules

Kevin Clark

A coalition of 23 states and the trade association representing nearly 900 local electric cooperatives filed separate lawsuits Thursday challenging the power plant rules finalized by the Environmental Protection Agency (EPA) in April.

The rules targets coal-fired plants and new natural gas-fired plants, which would have to capture their emissions or retire by various compliance dates in the 2030s.

Both lawsuits were filed in the U.S. Court of Appeals for the District of Columbia Circuit.

Major coal producing states are leading the multistate challenge, saying the EPA rules would be a death blow to the coal industry while jeopardizing grid reliability.

“This green new deal agenda the Biden administration continues to force onto the people is setting up the plants to fail and therefore shutter, altering the nation’s already stretched grid,” said West Virginia Attorney General Patrick Morrisey in a statement.

“Make no mistake, this rule intentionally sets impossible standards to destroy the coal industry,” North Dakota Attorney General Drew Wrigley said. “Federal agencies cannot decide on a whim to destroy entire industries.”

EPA’s final rules heavily rely on on carbon capture and sequestration/storage (CCS) as the best system of emission reduction (BSER) for the longest-running existing coal-fired units and most heavily utilized new gas turbines.

Under the rules, coal plants which plan to stay open beyond 2039 would have to reduce or capture 90% of their carbon dioxide emissions by 2032. Coal plants that are scheduled to close by 2039 would have to cut their emissions 16% by 2030, while those that are set to retire by 2032 would be exempted from the new rule.

New natural gas-fired plants that run more than 40% of the time, considered “baseload” by the agency, would also have to eliminate 90% of their carbon dioxide emissions using CCS by 2032. 

Read our full recap of EPA’s rules here

“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,” Morrisey said. “We are confident we will once again prevail in court against this rogue agency.”

The other states joining West Virginia and North Dakota are Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and Wyoming.

The National Rural Electric Cooperative Association (NRECA) also filed a lawsuit challenging the rules.

“EPA’s power plant rule is unlawful, unreasonable and unachievable. It exceeds EPA’s authority and poses an immediate threat to the American electric grid,” NRECA CEO Jim Matheson said. “Under the rule, EPA illegally attempts to transform the U.S. energy economy by forcing a shift in electricity generation to the agency’s favored sources.”

“Reliable electricity is the foundation of the American economy,” he added. “EPA’s rule recklessly undermines that foundation by forcing the premature closure of power plants that are critical to keeping the lights on – especially as America increasingly relies on electricity to power the economy.”

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