Energy & Environment — What can the EPA still do on power plants?

by Rachel Frazin and Zack Budryk - 07/05/22 7:21 PM ET

A plume of steam billows from a coal-fired power station. — Jim Cole, Associated Press file
A plume of steam billows from the coal-fired Merrimack Station in Bow, N.H.

Today we’re looking at some of the tools the Environmental Protection Agency (EPA) still has left at its disposal after last week’s Supreme Court ruling and at a separate court move to restore endangered species protections.

This is Overnight Energy & Environment, your source for the latest news focused on energy, the environment and beyond. For The Hill, we’re Rachel Frazin and Zack Budryk. Someone forward you this newsletter? Subscribe here.

EPA still has climate tools despite SCOTUS ruling

A Thursday ruling by the Supreme Court significantly curtailed the EPA’s power to restrict emissions from power plants under a 2015 rule, but the agency still retains other tools to curb emissions.

In the 6-3 ruling in West Virginia v. EPA, the court’s conservative majority found that the EPA lacked the authority to enforce an Obama-era power plant rule without specific congressional approval.
Although the ruling disallows that specific approach without lawmakers signing off, the agency still has its broader authority to regulate power plant outputs to cut emissions under the Clean Air Act.
The problem, from the point of view of those who want the EPA to cut emissions, is that in most cases the alternative regulatory methods are less efficient and more expensive in a political and regulatory environment where every second counts.

In the wake of the ruling, the EPA has many of the same arrows in its quiver as before to address pollutants from power plants, but “the tools the EPA has are probably inadequate,” said Cardozo School of Law professor Michael Herz.

Like what? One alternative to generation-shifting, the approach disallowed by the Supreme Court, is co-firing, or the combustion of two kinds of fuel at the same time, which can create a more environmentally friendly product at an existing plant.

“Depending on the level of co-firing that you assume, you could still get quite significant emissions reductions through that approach,” Lienke said.

He cited 2021 modeling by Resources for the Future, which indicates the co-firing approach could be an effective means of emissions reduction, but “almost certainly not as cost-effective as generation shift,” he added.

Another possible approach is carbon capture and sequestration, through which carbon emissions are stored and contained before they can enter the atmosphere.
However, the safest way to shore up EPA authority would be “legislation, appropriate, adequate, serious legislation,” Herz told The Hill.

Judge restores endangered species protections

A federal court on Tuesday reinstated endangered species protections that were loosened under the Trump administration.

Judge Jon Tigar, an Obama appointee, vacated the rules in question.

So what did these rules do? Under the Trump rules the Fish and Wildlife Service no longer provided the same protections to species that are considered threatened — those that are likely to become endangered — as they do for species that are endangered.

The rules also would have allowed for the consideration of economic impacts in deciding whether to protect a species. Conservationists additionally raised concerns that the rules could limit the consideration of climate change.
The Trump administration’s changes faced significant resistance from environmentalists, who brought the lawsuit.

“The whole point of the Endangered Species Act is to give protections to species that are on the brink of extinction,” Kristen Boyles, an attorney at Earthjustice, told The Hill.

“The Trump rules that have today been repealed did nothing to help species and in fact did affirmative harm to how species are protected in this country,” Boyles added. “By the court ruling today, we go back to the regulatory interpretation that had been in place for over 40 years.”

The Trump administration said at the time it finalized the changes that it was “easing the regulatory burden on the American public.”

The legal weeds: Last year, the Biden administration had asked the court to order a second look at the Trump rules, but did not ask the court to nix the changed rules in the meantime.

It said that getting rid of the Trump rules while it reassesses them “would cause confusion … by abruptly altering the applicable regulatory framework and creating uncertainty about which standards to apply.”

Nevertheless, in the case, Tigar argued that since the Biden administration has indicated that it would reevaluate the regulations, it “seems doubtful” that getting rid of them entirely would add to the confusion.