Power Plant Emission Rules Challenged in Lawsuit

West Virginia is among the states leading a lawsuit against the U.S. Environmental Protection Agency challenging new rules that will severely limit carbon dioxide emissions from coal-fired power plants and new gas-fired plants.

The lawsuit was filed by Republican attorneys general in 25 states, led by West Virginia and Indiana, asking the U.S. Court of Appeals for the District of Columbia Circuit to invalidate the new rules, claiming that the EPA exceeded its authority. A separate challenge was filed by Ohio and Kansas.

The Environmental Protection Agency recently announced the new final rules, which are aimed at reducing greenhouse gas (GHG) emissions to help the U.S. reach its goal of net-zero emissions by 2050. However, the rules could accelerate the retirement of operating coal-fired plants and the decline of the domestic coal industry.

Transportation and electric power generation are the two largest sources of GHG emissions, which trap heat in the atmosphere and contribute to global warming, according to the EPA.

The new rule will require coal power plants that plan to stay open beyond 2039 to mitigate or capture 90% of CO2 emissions by 2032. Plants that plan to cease operation before 2039 that will have to capture less emissions, and those that will shut down before 2032 do not have to adhere to the rules. Future natural gas or coal-fired plants will also have to meet the 90% rule, although existing natural gas-fired power plants are not included.

West Virginia Attorney General Patrick Morrisey, who also led a successful challenge to Obama administration power plant rules, said in a statement that the new rules ignored that decision. “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,” he said.

The new rule does not mandate the use of particular technologies, but an EPA release states that “the best system of emission reduction for the longest-running existing coal units and most heavily utilized new gas turbines is based on carbon capture and sequestration/storage (CCS) – an available and cost-reasonable emission control technology that can be applied directly to power plants and can reduce 90 percent of carbon dioxide emissions from the plants.” However, CCS is still in the developmental phase, has not been widely deployed at scale, and is currently very costly.

There are also concerns that the continued closure of fossil-fuel fired power plants could lead to a shortage of reliable electric sources as the country’s demand for power increases. The National Rural Electric Cooperative Association, in its own lawsuit, said the EPA exceed its authority and is creating a threat to the electrical grid.