By Abbie Vansickle
The Supreme Court earlier this week allowed the Environmental Protection Agency to move ahead it with its plans to limit carbon emissions by power plants, handing a victory to the Biden administration.
The decision, which was temporary, centered on a major regulation the administration enacted in April that seeks to eliminate pollution from coal, which emits more carbon dioxide than any other fossil fuel.
The move was part of the Biden administration’s promise to curb pollution from such emissions by 2050.
More than two dozen states challenged the regulation, arguing that the federal government had failed to prove that the techniques used to control emissions would curtail them to the degree the government is seeking.
The ruling, which was provisional, was in response to an emergency application as a challenge moves through the lower courts.
The EPA has been repeatedly stymied in the courts during the Biden administration over its efforts to protect the environment. In June, the Supreme Court temporarily paused an EPA plan to curb air pollution that drifts across state lines. It has also constrained the agency’s ability to limit water pollution and factors that lead to climate change.
Under the rule, coal- and gas-fired power plants slated to operate long-term would have to capture up to 90% of their emissions by 2032. The requirements are less strict for power plants scheduled to close in the coming years.
The court’s brief order Wednesday did not include its reasoning, which is typical in emergency applications. Justice Clarence Thomas noted that he would have blocked the emissions rule. The court’s order also indicated that Justice Samuel Alito did not participate in the deliberations, although no reason was given.
In a brief statement, Justice Brett Kavanaugh, joined by Justice Neil Gorsuch, said that while he agreed with the court’s decision to allow the emissions rule to go into effect, he believed that some of the Republican-led challenges “have shown a strong likelihood of success on the merits.”
Still, Kavanaugh said that a lower court would have sufficient time to review the case given that the power plants would not have to start work to comply with the rule until June 2025.
Environmental groups, as well as the EPA, lauded the decision.
“People across America are suffering through intensifying storms and other disasters because of climate change,” the general counsel of Environmental Defense Fund, Vickie Patton, said in a statement. “EPA — as specifically required by Congress — set reasonable and achievable standards to reduce the pollution that causes climate change from one of its largest sources, fossil fuel-burning power plants.”
One of the states that mounted the challenge, West Virginia, said it would continue to contest the rule.
“We will continue to fight through the merits phase and prove this rule strips the states of important discretion while forcing plants to use technologies that don’t work in the real world,” the state’s attorney general, Patrick Morrisey, said in a statement. “Here, the EPA again is trying to transform the nation’s entire grid, forcing power plants to shutter.”
The challenge is currently pending in the U.S. Court of Appeals for the District of Columbia Circuit. In July, a three-judge panel refused a request by the conservative-led states to stop the EPA rule from going into effect while the court case continued, prompting the states and other groups to ask the Supreme Court to step in.
In its decision, the appeals court panel wrote that there was no need to pause the EPA rule from going into effect while litigation continued because the case would proceed quickly and the federal government’s compliance deadlines were years from now, in 2030 or 2032.
The Biden administration announced the rule in April as part of a broader effort at limiting pollution from power plants. Several Republican-led states, including Indiana, Alabama and Alaska in addition to West Virginia, challenged the regulation the same day.
In their emergency application, the states accused the agency of being “driven by a distaste for fossil-fuel fired facilities,” and seeking to “force coal-fired plants to close and shift over to EPA’s preferred methods of power generation.”
The states argued that the EPA had exceeded its authority by creating the rule without specific congressional approval, and called the rule “an unlawful and ill-advised attempt to restructure the entire power industry.” They said the agency’s rules set “impossible-to-meet standards for regulated facilities, stripping away the states’ discretion to patch up the damage and ultimately pushing regulated sources into early retirements.”
In its brief, the Biden administration argued that the EPA had acted within its authority in setting emission limits and that it had determined that the best approach was 90% carbon capture. The technology uses chemical solvents to remove carbon dioxide from the exhaust stream of a power plant, permanently storing it underground.
The Biden administration contended that the challengers did not take issue with how the EPA had interpreted the Clean Air Act, but objected to the agency’s “technical and scientific judgments regarding the dependability, feasibility and cost of carbon capture.”
Those critics, Solicitor General Elizabeth B. Prelogar wrote, “largely ignore the hundreds of pages of analysis” by the EPA.
Although the challengers portrayed carbon capture as “an untested, futuristic technology,” Prelogar added, the agency found that its benefits had been “adequately demonstrated.”
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