New U.S. Power Plant Rules Exclude ‘Vast Majority’ of Gas Plants

The Biden administration’s long-awaited plan to regulate emissions from fossil fuel-fired power plants covers only 147 of 3,400 such facilities in the United States and relies heavily on costly technologies like carbon capture and hydrogen, critics say.

The proposal, which requires coal stations and large gas plants to reduce or capture 90% of their carbon dioxide emissions by 2038, “would drive dramatic changes across the electric sector,” according to the Financial Post. It could spur early closures of some fossil-fired plants and accelerate the power sector’s embrace of renewables, “but regulators softened the immediate impact,” focusing on the largest emitters and ignoring “peaker plants” that fire up to meet demand spikes.

Still, the U.S. Environmental Protection Agency (EPA) estimated the plan would avoid up to 617 million tonnes of carbon dioxide through 2042, equivalent to reducing the annual emissions of about half the cars in the U.S, reports NBC News. It would also prevent 300,000 asthma attacks and 1,300 annual premature deaths in 2030, the EPA said.

A ‘Politically Fraught’ Effort

Released May 11 and subject to a 60-day public comment period before being finalized, the highly-customized set of new EPA rules was “designed to give the power industry both time and options,” Inside Climate News explains. Its unveiling was a “complex and politically fraught effort,” given the challenges presented by a Congress and states filled with conservatives and fossil fuel allies who are “ready to push back.”

Last year, a radical ruling by the Republican-appointed majority in the United States Supreme Court on West Virginia v. EPA cut back [pdf] the environmental agency’s authority to regulate emissions. The ruling invoked the emerging ‘Major Questions’ doctrine: agencies do not have authority to determine issue of “vast ‘economic and political significance’” without “clear congressional authorization.”

The EPA aimed to tackle power plant emissions—which make up a quarter of all U.S. climate pollution—in alignment with the Supreme Court ruling, but also sought to undercut pushback from the sector, which claims that the technology for carbon cuts is not ready.

“Large categories of coal and natural gas power plants—those that are going to close soon, or are small, or only run intermittently—will not face new requirements at all,” Inside Climate reports. And a clean-up of the electricity sector will rely on carbon capture and storage (CCS) and clean hydrogen, which are “receiving billions of dollars of federal subsidies approved by Congress over the past two years.”

“No fossil fuel plant will be forced to install those technologies before 2030,” and large natural gas plants have until 2035 or 2038 to make changes. The timeline indicates that the rule will be ineffective in reaching Biden’s goal of 100% carbon-free electricity by 2035, Inside Climate concludes, countering claims made by White House officials.

And already, the anticipated challenges have launched. “Senator Joe Manchin III, the West Virginia Democrat who has opposed many of his party’s climate policies, said Wednesday that he would oppose all of Biden’s nominees to the EPA unless the administration dropped the regulation—a threat that carries teeth in the narrowly divided Senate,” the New York Times reports.

“This administration is determined to advance its radical climate agenda and has made it clear they are hellbent on doing everything in their power to regulate coal- and gas-fueled power plants out of existence, no matter the cost to energy security and reliability,” said Manchin, who is currently the Senate’s top recipient of financial contributions from oil and gas industry lobbyists.

Heavy Reliance on CCS and Hydrogen

The new rules count on CCS and clean hydrogen technology to cut the electricity sector’s emissions, but neither have been widely deployed, nor are they viewed as effective by those in climate policy circles. Despite EPA claims that carbon capture is market-ready, only one power plant on the continent, Saskatchewan’s Boundary Dam facility, uses the technology at scale, Inside Climate reports. Boundary Dam has been plagued by financial problems and consistently failed to meet its production targets.

Deploying CCS across the sector will also require major investments in pipeline infrastructure to transport the captured carbon, an idea that has already generated resistance from communities worried about health risks and safety, Politico says.

Skeptics have also raised doubts about hydrogen, since it is often produced using fossil fuels, and since a lot of energy is lost in its production, making other energy options more efficient. Steven Hamburg, chief scientist at the Environmental Defense Fund, said hydrogen will not be a first-line choice, but will “naturally settle into filling gaps.”

Climate Justice Delayed

Critics are also taking issue with the EPA’s focus on only select groups of power plants, with no new regulations for “the vast majority of gas plants in the country,” especially peaker plants.

Peaker plants are already subject to looser regulations and can generate more pollution because they run intermittently and ramp up quickly. They are also disproportionately located in low-income communities and communities of colour in the U.S. The administration’s failure to include them in the new regulations undermines claims that the proposal could be a win for environmental justice, Shelley Robbins, project director at the Clean Energy Group, told Emily Atkin’s HEATED newsletter.

Only 147 plants out of a total 3,400 fossil-fuel fired plants in the U.S. will be included in the new rules, according to the group’s analysis.

That leaves at least 61 million people, mostly in low-income or racialized communities, living within three miles of a fossil fuel plant that won’t be required to reduce its emissions, Robbins said.

EPA Administrator Michael Regan said the agency focused on the most egregious sources of pollution, and rules for peaker plants may come later. “Some of the smaller sources, some of those peaker plants that run less frequently, we will be thinking about how we tackle those as well.”

An Unmentioned Result

Some climate advocates say the new rules could help bring about a result that is not reflected in the proposal’s language, reports Inside Climate: “It will catalyze a faster transition to wind, solar, and other carbon-free and renewable energy.”

“When you’re looking across all these standards and deciding what to do with your existing fossil fuel-fired power plants, one of your options is to just retire it and replace it with something cleaner, which the Inflation Reduction Act incentives make economically a very rational choice,” said Lissa Lynch, director of the climate and clean energy program’s federal legal group at the Natural Resources Defense Council (NRDC).

That makes a switch to renewables “an option for compliance” for the power plants, Lynch said.

Further Legal Challenges

But as the plan rolls out, West Virginia v. EPA is part of a new legal landscape that has set the stage for further challenges to the EPA’s powers to tackle climate change. The Supreme Court has agreed to hear a new case that could upend how agencies operate, The Hill reports.

Since the 1984 case of Chevron v. NRDC, courts have followed a framework for evaluating agency rulemaking that defers to agency judgement when legislation does not clearly address a given issue. In doing so, the framework of Chevron placed a significant amount of power in agencies whose heads are usually appointed by the executive branch. But many conservative legal theorists have sought to overturn the ruling, and several current Supreme Court justices—most notably Clarence Thomas and Neil Gorsuch—have vocally opposed it.

By agreeing to hear a case that challenges agency authority, the court has opened the door to shifting power back to the legislative and judicial branches, with some legal experts saying that outcome is a foregone conclusion. If the challenge succeeds in overturning the nearly four-decade precedent of Chevron, agencies will no longer have broad powers to act on issues like air pollution.

“The implication is, if we’re not going to defer any more to them, that the members of Congress making laws have to be very specific on the legislation,” said Mona Dajani, global head of renewables, energy and infrastructure projects at Shearman and Sterling.

“They have to address almost every possible contingency in a bill to have it passed because the agencies will have no discretion.”