On Friday, the U.S. Court of Appeals for the D.C. Circuit Request Denied Suspending recently enacted rules that limit carbon emissions from fossil fuel power plants. The request, made as part of a lawsuit filed by 25 states against the EPA, would have paused the federal program while the litigation continued. Instead, the EPA was allowed to continue the process of enforcing the rules, and the larger lawsuit would be heard on an accelerated schedule.
here we go again
The EPA’s efforts to regulate carbon emissions from power plants date back to the second term of the Bush administration, when a group of states sued the EPA and won to force greenhouse gas emissions limits. This led to a formal greenhouse gas risk determination during the Obama administration that has remained unchallenged under President Donald Trump.
President Obama tried to regulate emissions through the Clean Power Plan, but his second term ended before the plan cleared court hurdles, allowing the Trump administration to develop a far less effective replacement than the Clean Power Plan. This came at a time when the displacement of coal by natural gas and renewable energy was accelerating, already exceeding the changes envisioned in the Clean Power Plan.
In any case, Trump’s plan was rejected by the courts on the eve of Biden’s administration, allowing the EPA to start with a clean slate. Biden’s original plan, which would have had states regulate emissions from their power grids as a single system, was rejected by the Supreme Court, which ruled that “emissions must be regulated at each power plant.” West Virginia v. EPA.
So that’s what the agency is doing now. Under the agency’s plan, released last year, fossil-fuel-burning power plants that are set to shut down in the early 2030s would be allowed to keep operating without restrictions. Other plants would have to install carbon capture equipment or natural gas plants would have to switch to green hydrogen as their primary fuel.
and again
In response, 25 states filed a lawsuit to block the rule (see details here). This application Check if your country is included. States are also Asked to stay The lawsuit would block the rules from going into effect while the litigation proceeds. In it, they argue that carbon capture technology isn’t mature enough to be the basis for these regulations (a point they likely anticipated would be contested). The lawsuit also suggests that the rules would effectively put the coal industry out of business, something that’s outside the EPA’s authority.
But the D.C. Court of Appeals was not impressed, ruling that the states’ arguments about carbon capture were insufficient: “Given the record in this case, the petitioners do not appear likely to succeed on these claims,” a key hurdle for determining whether an injunction is warranted. And because the court noted that the states aren’t expected to submit plans for at least two years and the regulations won’t go into effect until 2030 at the earliest, the regulations are unlikely to cause irreparable harm.
Meanwhile, the state West Virginia v. EPA Deciding against these rules, the Supreme Court suggested that these were “important issues” that required input from Congress. The Supreme Court was also unimpressed, writing that “EPA only asserts its authority to set emission limits under Section 111 based on the application of measures that would reduce pollution by making regulated sources operate cleaner,” an action that is within the EPA’s jurisdiction.
To address states’ concerns about the possibility of irreparable harm, the court is set to deliberate during its 2024 session, giving the parties just two weeks to submit proposed schedules for arguments in the case.
