EPA is preparing to Supreme Court-proof President Biden’s ambitions for a carbon-free power grid by looking beyond direct greenhouse gas regulation and relying on the knock-on effect of stricter air, waste and water rules.
It’s a “comprehensive approach” to decarbonize the power grid that’s been in the works since the beginning of the Biden administration .
EPA began floating the idea of a power sector “initiative” or “strategy” in private discussions last year before international climate talks began in Glasgow, Scotland.
The high court had long been viewed as a possible barrier to this more expansive reading of EPA’s Clean Air Act authority after it stayed the Obama-era rule in 2016. But its conservative majority has since grown, and last year it broke with usual practice in agreeing to review the challenge to the Clean Power Plan even though that rule is no longer in effect. This was seen to signal the court’s conservative majority’s eagerness to rein in EPA’s regulatory authority.
But if they stick to heat-rate improvements at power plants, Bookbinder estimated, they may only shave off 5 or 10 percent of their greenhouse gases. That makes it important for EPA to show it can meet Biden’s commitments through other channels. But Holmstead said the agency would have to be careful about how it framed the rules’ contribution to Biden’s climate agenda, either in the rules’ documents or in EPA officials’ public comments. Leaning on the greenhouse gas benefits of rules that don’t explicitly target greenhouse gas emissions could make those rules vulnerable to legal challenge, he said.
Thomas Cmar, an attorney with the law firm AltmanNewman who represents the Sierra Club and other environmental groups, said stricter rules and enforcement are likely on the horizon, which could prompt some plants operating on the margin to reconsider closure timelines. Meanwhile, power plant pollution is growing, the latest EPA numbers indicate. For the first nine months of fiscal 2021, releases of CO2 and nitrogen oxides each rose 10 percent, mercury emissions climbed 19 percent and sulfur dioxide discharges soared 30 percent in comparison withthe same period in 2020, according to data posted on an EPA website. Those increases, which the agency attributes to a jump in coal-fired generation, buck a long-term downward trend.
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