It didn’t take long. Less than a day after the Environmental Protection Agency announced its latest move to remove CO2 produced by coal-fired power plants, Wyoming Republican Gov. Mark Gordon told his attorney general to look into forming a coalition of coal states to challenge the rules in court.
Cowboy State Daily quoted Gordon, “We are prepared to apply our litigation strategy to the oncoming wave of federal regulatory actions that threaten Wyoming.” He added that EPA’s new coal-phobic rules are “a bludgeon when a flyswatter would have worked.”
Many Republican legislators in the Cowboy State, the nation’s largest producer of steam coal to fuel power plants, and others in the region regard Gordon as squishy on climate issues. In an act of local apostasy, he accepts that global warming is real and requires some actions to deal with the phenomena that may result. But in Wyoming, coal remains king.
The new EPA rules pushing carbon capture and storage (CCS) are likely to spawn multiple legal challenges. Predictably, West Virginia Attorney General Patrick Morrisey, who led the multi-state suit that sank the Obama administration’s attempt at CO2 controls, announced he’s gearing up to challenge the new plan. He said, “This tactic by the EPA is unacceptable, and this rule flies in the face of the rule of law. We are confident this new rule is not going to be upheld, and it just seems designed to scare more coal-fired power plants into retirement–the goal of the Biden administration.”
This plan almost certainly will end up in a Supreme Court that has a recent record of hostility toward federal climate policy, going back at least to 2016. In June 2022, the court lowered the boom on the Obama administration’s attempt to deal with the issue of legacy coal-fired generating plants by encouraging a widespread shift in generation technology rather than focusing on regulating individual plants. The court demolished the EPA plan as well as a Trump administration substitute policy.
In order to murder the EPA’s 2015 plan in West Virginia v. EPA, the court in the usual 6-3 conservation v. liberal split cited what it called “the major questions doctrine,” determining that the Clean Air Act doesn’t allow the agency to “adopt a regulatory program that Congress had conspicuously declined to enact itself.”
Some experienced legal scholars argue that the court invented this legal device, the evil step-brother of the long-standing Chevron doctrine. In 1984’s Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., a Clean Air Act case, the high court ruled that courts should generally defer to executive branch agencies that have technical expertise, which the court does not. Chevron has been cited in hundreds of subsequent cases in federal courts.
The court’s conservatives, including Chief Justice Roberts, Justice Antonin Scalia, and Justice Neil Gorsuch, have long despised Chevron. Coincidentally, when the court decided Chevron, Gorsuch’s late mother Anne Gorsuch Burford was the EPA administrator. He was a 17-year-old attending Georgetown Prep in nearby Bethesda, Md., two years behind future Supreme Court colleague Brett Kavanaugh.
A year ago in May, the Supreme Court said it will reevaluate Chevron in Loper Bright Enterprises v. Raimondo. A decision could come in the next couple of months.
The EPA rule also faces technological and economic risks. Despite regulatory assertions that CCS is available to capture 90% of CO2 emissions, the evidence is slim. Also, the costs of adding carbon capture and developing acceptable storage sites and pipelines across numerous political jurisdictions are daunting.
The most ambitious CCS project at a coal-fired power plant was Petra Nova, a joint venture of NRG Energy and JX Nippon Oil & Gas Exploration at one boiler at the WA Parish station in Texas, using captured CO2 to enhance oil recovery. The project cost about $1 billion and shut down in 2020 while losing money.
JX Nippon announced a Petra Nova restart last September. A Quad Report inquiry to the company about the current status of the project is unanswered.
Another major proposed project is rural electric cooperative Minnkota Power’s $1.4 billion Project Tundra, at the aged 685-MW Milton Young lignite plant in Oliver County, N.D. The co-op has been pondering the project since 2015 and hopes (unrealistically) to begin construction this year, operating 2028. Minnkota is in discussions with DOE over a $350 million subsidy.
Project Tundra has produced deep doubts from civil engineer and professor at Notre Dame University Emily Grubert, who formerly worked in DOE’s Office of Carbon Management. In an interview with Inside Climate News, Grubert suggests that the best option to reducing CO2 emissions from Milton Young would be to retire the 55-year-old plant.
“The alternative to CCS would essentially be to shut the plant down, so this is not a situation where you are eliminating emissions from a plant that would have continued to operate anyway.” Notre Dame’s Emily Grubert
Grubert said, “The alternative to CCS would essentially be to shut the plant down, so this is not a situation where you are eliminating emissions from a plant that would have continued to operate anyway. Probably most coal plants only make it to 50-ish years before they need a major overhaul. So this is essentially a rebuild of the plant.”
Coal producers, Grubert noted, love CCS “because it increases the amount of coal you need to produce. And I think that the point that I would like to make to people is basically this is inherently more expensive [compared to a plant without CCS].” By her ballpark reckoning, the cost of the Milton Young electricity after CCS would be “50 to 100 percent more” than the current cost. “I think, in general, what we’ve seen with big CCS projects is that they tend to be over budget and behind schedule. In this particular case, because you’re working on 50-year-old units, you also have to go in and fix them before you can do those retrofits.”
If, as West Virginia’s Morrisey contends, the unstated objective of the EPA plan is to convince coal plant owners to shut the plants, not add new technology to keep them running, opponents surely will raise that in their legal assaults, arguing that it amounts to the generation-shifting camel’s nose under the Clean Air Act tent. That objection would cite the “major questions” dictum (and Chevron may be a dead doctrine by then).
–Kennedy Maize