Released October 17, 2024 | SUGAR LAND
en
Written by John Egan for Industrial Info Resources (Sugar Land, Texas)--The U.S. Supreme Court on Wednesday denied a request from two dozen Republican-led states, utilities and energy interests to intervene in a significant Clean Air Act case that currently is being litigated in lower federal courts. This case involves the Biden administration's finalized rule sharply limiting future carbon dioxide (CO2) emissions from existing coal-fired generators and future gas-fired generators. For more on that final rule from the U.S. Environmental Protection Agency (EPA) (Washington, D.C.), see April 26, 2024, article - EPA Issues Rules That Could Reshape Electric Generation.
This past summer, states and energy interests asked the court to intervene on an "emergency" basis in litigation over the EPA's CO2 emissions rule that was underway at the U.S. Court of Appeals for the D.C. Circuit (Washington, D.C.). On Wednesday, the high court rejected this request, as it did earlier this month to two other "emergency" requests filed by energy interests to block other EPA environmental rules that also were in the process of being litigated. For more on that earlier decision, see Octobert 7, 2024, article - Supreme Court Denies Efforts to Intervene in Two EPA Cases.
In all three cases, the plaintiffs tried to invoke language around the "major questions" doctrine, which the court used in 2022 when it ruled against the Biden administration's effort to regulate CO2 emissions from power plants. For more on that case and the "major questions" doctrine, see July 1, 2022, article - Supreme Court Kicks Clean Air Case Back to EPA.
Numerous organizations, including the states of West Virginia and Ohio; the Edison Electric Institute (EEI) (Washington, D.C.); the National Rural Electric Cooperative Association (NRECA) (Washington, D.C,); NACCO Natural Resources Corporation, a unit of NACCO Industries Incorporated (NYSE:NC) (Cleveland, Ohio); the Midwest Ozone Group and Electric Generators For a Sensible Transition, filed an "emergency" appeal to the high court this summer to insert itself in litigation over the EPA's CO2 emissions rule.
Wednesday's ruling allows that litigation to continue in the D.C. Circuit Court over the EPA's CO2 emissions rule for power plants that burn coal or natural gas to make electricity. That rule required existing coal-fired baseload power plants that wish to continue operating beyond 2039 to reduce CO2 emissions by 90%. That 90% reduction also applied to new gas-fired generators.
The EPA's final CO2 rule, issued this past April as part of a suite of power plant rules, is over 1,000 pages long. Despite several recent attempts by Democratic presidents, the U.S. has no rule limiting CO2 emissions from fossil fueled power plants.
Under that CO2 rule, coal-fired power plants that are scheduled to operate through or beyond 2039 must reduce their greenhouse emissions 90% by 2032. Coal-fired plants that are scheduled to close by 2039 would have to reduce their emissions 16% by 2030. Coal-fired generators that retire before 2032 would not be subject to the CO2 rule.
Existing coal plants and future gas plants can continue operating past 2039 if they install carbon capture, sequestration and usage (CCUS) technology, the agency said. That technology is expensive and not widely used at commercial scale in power plants.
Regarding CCUS, the agency wrote in its Federal Register filing that it was the Best System of Emissions Reduction (BESR): CCUS "is an adequately demonstrated technology that achieves significant emissions reduction and is cost-reasonable, taking into account the declining costs of the technology and a substantial tax credit available to sources."
The EPA plans to issue a new rule governing CO2 emissions from existing gas-fired power plants. That rule, currently said to be close to being final, was not part of the high court litigation.
While high court decisions to deny certiorari typically are unsigned, Wednesday's decision included a comment from Associate Justice Brett Kavanaugh, which was joined by Associate Justice Neil Gorsuch, that took issue with the applicant's alleged "emergency."
"In my view, " Kavanaugh wrote, "the applicants have shown a strong likelihood of success on the merits as to at least some of their challenges to the Environmental Protection Agency's rule. But because the applicants need not start compliance work until June 2025, they are unlikely to suffer irreparable harm before the Court of Appeals for the D.C. Circuit decides the merits. So this Court understandably denies the stay applications for now. Given that the D.C. Circuit is proceeding with dispatch, it should resolve the case in its current term. After the D.C. Circuit decides the case, the non-prevailing parties could, if circumstances warrant, seek appropriate relief in this Court pending this Court's disposition of any petition for certiorari, and if certiorari is granted, the ultimate disposition of the case."
Industrial Info Resources (IIR) is the leading provider of industrial market intelligence. Since 1983, IIR has provided comprehensive research, news and analysis on the industrial process, manufacturing and energy related industries. IIR's Global Market Intelligence (GMI) platform helps companies identify and pursue trends across multiple markets with access to real, qualified and validated plant and project opportunities. Across the world, IIR is tracking over 200,000 current and future projects worth $17.8 Trillion (USD).
This past summer, states and energy interests asked the court to intervene on an "emergency" basis in litigation over the EPA's CO2 emissions rule that was underway at the U.S. Court of Appeals for the D.C. Circuit (Washington, D.C.). On Wednesday, the high court rejected this request, as it did earlier this month to two other "emergency" requests filed by energy interests to block other EPA environmental rules that also were in the process of being litigated. For more on that earlier decision, see Octobert 7, 2024, article - Supreme Court Denies Efforts to Intervene in Two EPA Cases.
In all three cases, the plaintiffs tried to invoke language around the "major questions" doctrine, which the court used in 2022 when it ruled against the Biden administration's effort to regulate CO2 emissions from power plants. For more on that case and the "major questions" doctrine, see July 1, 2022, article - Supreme Court Kicks Clean Air Case Back to EPA.
Numerous organizations, including the states of West Virginia and Ohio; the Edison Electric Institute (EEI) (Washington, D.C.); the National Rural Electric Cooperative Association (NRECA) (Washington, D.C,); NACCO Natural Resources Corporation, a unit of NACCO Industries Incorporated (NYSE:NC) (Cleveland, Ohio); the Midwest Ozone Group and Electric Generators For a Sensible Transition, filed an "emergency" appeal to the high court this summer to insert itself in litigation over the EPA's CO2 emissions rule.
Wednesday's ruling allows that litigation to continue in the D.C. Circuit Court over the EPA's CO2 emissions rule for power plants that burn coal or natural gas to make electricity. That rule required existing coal-fired baseload power plants that wish to continue operating beyond 2039 to reduce CO2 emissions by 90%. That 90% reduction also applied to new gas-fired generators.
The EPA's final CO2 rule, issued this past April as part of a suite of power plant rules, is over 1,000 pages long. Despite several recent attempts by Democratic presidents, the U.S. has no rule limiting CO2 emissions from fossil fueled power plants.
Under that CO2 rule, coal-fired power plants that are scheduled to operate through or beyond 2039 must reduce their greenhouse emissions 90% by 2032. Coal-fired plants that are scheduled to close by 2039 would have to reduce their emissions 16% by 2030. Coal-fired generators that retire before 2032 would not be subject to the CO2 rule.
Existing coal plants and future gas plants can continue operating past 2039 if they install carbon capture, sequestration and usage (CCUS) technology, the agency said. That technology is expensive and not widely used at commercial scale in power plants.
Regarding CCUS, the agency wrote in its Federal Register filing that it was the Best System of Emissions Reduction (BESR): CCUS "is an adequately demonstrated technology that achieves significant emissions reduction and is cost-reasonable, taking into account the declining costs of the technology and a substantial tax credit available to sources."
The EPA plans to issue a new rule governing CO2 emissions from existing gas-fired power plants. That rule, currently said to be close to being final, was not part of the high court litigation.
While high court decisions to deny certiorari typically are unsigned, Wednesday's decision included a comment from Associate Justice Brett Kavanaugh, which was joined by Associate Justice Neil Gorsuch, that took issue with the applicant's alleged "emergency."
"In my view, " Kavanaugh wrote, "the applicants have shown a strong likelihood of success on the merits as to at least some of their challenges to the Environmental Protection Agency's rule. But because the applicants need not start compliance work until June 2025, they are unlikely to suffer irreparable harm before the Court of Appeals for the D.C. Circuit decides the merits. So this Court understandably denies the stay applications for now. Given that the D.C. Circuit is proceeding with dispatch, it should resolve the case in its current term. After the D.C. Circuit decides the case, the non-prevailing parties could, if circumstances warrant, seek appropriate relief in this Court pending this Court's disposition of any petition for certiorari, and if certiorari is granted, the ultimate disposition of the case."
Industrial Info Resources (IIR) is the leading provider of industrial market intelligence. Since 1983, IIR has provided comprehensive research, news and analysis on the industrial process, manufacturing and energy related industries. IIR's Global Market Intelligence (GMI) platform helps companies identify and pursue trends across multiple markets with access to real, qualified and validated plant and project opportunities. Across the world, IIR is tracking over 200,000 current and future projects worth $17.8 Trillion (USD).
